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COF^OUGHT DEPOSIT 






CONSTITUTIONS 



CONSTITUTIONS 



BY 

JAMES BRYCE, D.C.L. 

AUTHOR OP 

'the holy ROMAN EMPIRE," " THE AMERICAN COMMONWEALTH," ETC, 

FORMERLY REGIUS PROFESSOR OF CIVIL LAW IN THE UNIVERSITY 

OF OXFORD; HONORARY FELLOW OF ORIEL AND TRINITY 

COLLEGES, CORRESPONDING MEMBER OF THE 

INSTITUTE OF FRANCE 



OXFORD UNIVERSITY PRESS 

AMERICAN BRANCH 

New York: 91 and 93 Fifth Avenue 

LONDON: HENRY FROWDE 



■<^:^^ 



^ 



LIBRARY of 30NGRtSS 
Two Ootfies rttxeivco 

JUN 23 lyoi) 

/i Oouyriifni tjuri 






COPY B. 



Copyright, 1901 and 1905, by 

OXFORD UNIVERSITY PRESS 

AMERICAN BRANCH 



Manhattan Press 
New York 



PREFACE 

It has been suggested to me that of the sixteen Essays 
included in my Studies in History and Jurisprudence 
(which appeared in 1901) there are six that may with ad- 
vantage be now pubHshed separately, because they all deal 
with a subject much studied in America and, to a less ex- 
tent, in British Universities. These six, composed at 
different times, and several of them owing their origin to 
events that were then passing in the world, have a certain 
community of aim. All relate to Political Constitutions, 
the first two Essays being intended to indicate various 
points of view from which Constitutions may be examined 
and judged, while the other four serve to elucidate those 
points by concrete examples. 

A Constitution is a Frame of Government designed to 
prescribe the form which the administration of a State 
takes, to define its powers over the citizen, and the rights 
of the citizen against it. I l may be studied both in respect ^ 
_,of its form and as a result of certain political forces. The 
first Essay, on Flexible and Rigid Constitutions, discusses 
the fundamental distinction between the two main classes 
into which frames of government fall, viz. Constitutions 
which can be changed by the ordinary legislative authority 
in the same way in which ordinary laws are enacted, and 
those which, because they cannot be so changed, stand 
above ordinary law. ^ It describes the character of each 
type, drawing illusticyVions chiefly from Rome, England, 
and the United States, considers the compatibility of each 
with democratic ideas and habits, and endeavours to ap- 
praise their respective merits, and to conjecture the part 
which each will play in the future. 

The second Essay, The Action of Centripetal and Cen- 
trifugal Forces on Political Constitutions, suggested partly 
by the recent history of Iceland, partly by the Irish de- 
mand for Home Rule, and sketched out in the days before 
Mr. Gladstone had given his approval to that demand, 
treats of the various influences, some associative, some 
disjunctive, which tend either to consolidate smaller com- 



viii PREFACE 

munities into a large State, or to split up a large State 
into smaller communities. It shews what are the con- 
ditions that favour the working of one or other tendency, 
and the plans by which the framers of Constitutions have 
endeavoured to regulate both tendencies so as to secure 
stability and permanence. It estimates the strength which 
the two forces shew over the world at this moment, and 
glances at the possibility that the centripetal force which 
now seems the stronger may not always continue to be so. 
The third Essay, entitled Primitive Iceland, was written 
after a visit to that isle. It contains a sketch of the early 
history of a singularly interesting people, and of the quite 
unique political arrangements which they created, as far 
back as the tenth century, when their noble literature was 
beginning to put forth its first buds. Iceland offers the 
best, perhaps the only complete, example of a State which 
was highly developed on its legal and judicial side, while 
scarcely developed at all upon the administrative side. Its 
annals teach us many things, and among them this, that 
primitive institutions are not necessarily simple, but some- 
times highly complex, and that a taste for subtlety and 
formalism may appear at the very beginning of legal 
history. 

The fourth Essay, The Predictions of Hamilton and 
Tocqueville, considers the history of the Constitution of 
the United States from the point of view of two great 
writers, who, the one at its birth, the other some forty 
years later, explained its leading features and gave a 
forecast of its probable development. Their respective 
prophecies are examined, and it is shewn in what respects 
the course of events has followed.^ i line different from 
that which they expected. 

In the two remaining Essays, Ttco South African Con- 
stitutions and The Constitution of the Commonzvealth of 
Australia, the latest eft'orts of constructive skill in the 
creation of systems of government for democracies are 
analyzed and commented on. The Constitutions of the 
Transvaal Republic and of the Orange Free State have 
now disappeared, as both communities have been con- 
quered and annexed to the British dominions. But these 
two instruments deser^^e to be remembered and studied, 
for they were unlike any others in the world. They 



PREFACE "« 

shewed features to be found neither anywhere in America, 
nor in Switzerland, nor in any British colony. Legal 
skill can perhaps be hardly attributed to the framers of 
either Constitution, for they were men of little knowledge 
and limited experience. But nowhere was there any 
scheme of government planned upon broader and simpler 
lines than that of the Orange Free State, nor any which 
worked better in practice. The new Constitution for 
Federated Australia is less peculiar, for it has followed in 
many points the Constitution of the United States, and in 
others that of the Canadian Dominion, It is, however, of 
great legal as well as political interest, and in some re- 
spects it is of all existing Frames of Government that 
which is most thoroughly penetrated by a democratic 
spirit, and has been most definitely adapted to the prob- 
lems of the present. 

There is thus, as I trust, a certain unity in these Essays, 
or what I may call a certain convergence of aim ; while 
the juxtaposition of one of the earliest of modern Con- 
stitutions — that of the Teutonic Republic, which grew 
up in the tenth century amid the snows of the far North — 
and the latest — that of another Teutonic Commonwealth 
which, in A. D. 1900, arose under the Southern Cross by 
the union of six British colonies — may serve to convey to 
a reader some impression of the amplitude and variety of 
the subject. It is indeed a well-nigh inexhaustible sub- 
ject, the details of which must of course be studied in 
many treatises, for no one book could present more than 
the broad lines. I have assumed in this volume that the 
student is a master of the English and the American Con- 
stitutions, and knows at least the general features of the 
Roman. Among other modern Constitutions which ought 
to occupy his thoughts, perhaps the most instructive, 
especially to an American reader, are those of Switzer- 
land, of Canada, and of the German Empire. The Hun- 
garian, the Belgian, and the Japanese also deserve exam- 
ination. Those of the republics of Spanish America are 
copies, more or less divergent, of the Constitution of the 
United States. 

The interest and value of the study of Constitutions lies 
not so much in a mastery of their technical details, and of 
the construction put on each of their provisions, as in ap- 
prehending the relation of each to the history of the nation 



X PREFACE 

which has lived under it. Each must therefore be studied 
along- with the annals of the political and economical life 
of the people. Every Constitution is the outcome of a 
nation's earlier history, the product of struggles which 
have determined the character of its government ; and once 
that character has been determined, and a definite form 
given to it, whether by usage or by formal enactment in 
one or more instruments, the Constitution becomes itself a 
factor, and influences all the history that follows. It di- 
rects the course which the action of the people, or of a 
ruling class, tends to take. It educates the nation, moulds 
their ideas and beliefs, gives them the sense of a continu- 
ous and stable life, teaches them to respect the past, be- 
comes — in some happy instances — the object of their rev- 
erence. If and when it does these things, it does them in 
virtue of its suitability to their conditions. If it is not 
suitable, which may happen if it is imposed by a dominant 
faction on a reluctant people, or hastily imitated from 
some state where conditions are different, or if the con- 
ditions of a country have so changed that its provisions 
no longer correspond to the new facts, its life may be 
troubled or short. Obvious as these considerations seem 
when stated in the abstract, history is full of instances in 
which they have been ignored, and usually with disastrous 
results. 

As conditions never remain long the same in this 
changeable world, Constitutions need to be amended. 
Yet a principal merit of those which belong to the Rigid/ 
type is to give steadiness and permanence to the govern- 
ment carried on under them, which they cannot do if they 
are frequently altered. Here, therefore, is a constant 
difficulty, which can be overcome only by wisdom in 
statesmen, by patience and self-control in the people. To 
know when to bear inconveniences rather than incur the 
evils of change, to carry through change, when it has 
become inevitable, in a cautious and temperate way, so 
that evolution shall (as some one has said) avert revolii- 
tion — this is one of the highest tasks and most searching 
tests of statesmanship and patriotism. 

The mode of amending Constitutions, a topic discussed 
in the first Essay, has become one of special importance 
in modern times, and that for two reasons. The older 
Constitutons, such as that of England and that of Hun- 



PREFACE xi 

gary, are, like those of the ancient world, capable of being 
varie^i-^by the ordijiary legislative authority without any 
special formalitiesT TBut nearly all recent Constitutions, 
including those of the United States, Switzerland, Can- 
ada, and Australia, are embodied in an instrument which 
can be altered not by the legislature in the course of its 
regular action, but only in a specially prescribed way, 
usually by a vote of the people. This provision is intended 
to place obstacles in the way of any but well-considered 
changes which the nation as a whole desire. But if the 
people contract the habit of frequently exerting their 
power, the security vanishes. Hence the need for making 
amendment a slow and comparatively difficult process. 
The other reason is that written instruments embodying 
fundamental laws and doctrines, which were formerly 
prized by the mass of the people as guarding the liberties 
they had extorted from a monarch or a ruling class, have 
in recent times been sometimes unwelcome to the masses, 
because they restrict the power which the legislatures, or 
the officials, whom the people choose, might at the peo- 
ple's bidding exert. There is, therefore, a probability 
that as the masses get more and more accustomed to the 
exercise of their own sovereignty, they, may, expunge 
from the Constitutions restrictions which they feel to 
hamper their own action, or may turn their amending 
power into a habitual use for purposes properly legislative 
of their supreme authority. 

These risks, though they may have shewn signs of 
appearing in Switzerland, have not yet caused serious 
alarm in any democratic country. In the United States 
the Federal Constitution has not been amended for thirty- 
five years. State Constitutions have been greatly en- 
larged, and are still frequently altered ; and though this 
has hitherto been due not to any volatile impatience on 
the part of the people, but rather to a distrust of the State 
legislatures, the tendency to direct legislation by popular 
vote is evidently a growing tendency, which may give a 
new turn to the working of these instruments, and ma- 
terially affect the political life of the country. Thus we 
may say that the Constitutions of the several States of 
the Union are still in the stage of growth and develooe- 
ment. The Federal Constitution develops in another way. 
Political events such as the annexation of Puerto Rico 



xii PREFACE 

and the Philippine Islands, economic events such as the 
growth of great combinations of capitalists, raise new 
questions, and the decision of these questions by the 
Federal Courts in so far changes the Constitution, that its 
words carry to us a new meaning, perhaps a much fuller 
meaning than they had before. That even a Rigid Con- 
stitution, and one whose formal amendment is excep- 
tionally difficult, cannot stand unchanged from generation 
to generation is a truth which has become clearer now 
than it was a century ago. 

The Constitution of the United States has in America 
been studied with more incessant diligence and keen 
acumen than any other document, except the Xew Testa- 
ment, and has been approached from every possible point 
of view save one. It has been but little compared with 
other constitutional instruments enacted in and for other 
countries. That kind of study has indeed little impor- 
tance for the practicing lawyer, but it is of real value to 
the statesman, and is still more essential to the political 
philosopher. The relation of the Courts to legislation, 
the modes of amendment, the rights guaranteed to the 
people, the respective merits of the system of a re- 
sponsible head of the Executive, and of the system of an 
irresponsible head with a responsible Cabinet, and (in 
federations) the distribution of functions between Fed- 
eral and State authorities — these are only a few of the 
many points in which the schemes adopted in Switzer- 
land, Germany, Canada, and Australia deserve to be com- 
pared with the older American scheme by which they 
have each and all been influenced. There is much to be 
learned from a comparison and criticism as well of the 
legal forms under which government is carried on as of 
the actual political phenomena of civilized States. It has 
been my aim in these Essays to make such contributions' 
as I can to this Comparative Study of Constitutions, in the 
hope that this branch of enquiry will be more actively 
prosecuted in the future, and that it may prove to be one 
of the most practically useful branches of political science. 

JA^IES BRYCE. 



CONTENTS 



ESSAY I 

Flexible and Rigid Constitutions 

Observations on the Constitutions of Rome and England 

Old Classification of Constitutions as Written and Un 

written ........ 

Proposed new classification ..... 

Flexible Constitutions: how far distinguishable fro:n law; 

in general ...»,... 
Origin of Flexible Constitutions .... 

Strength and weakness of Flexible Constitutions 
Such Constitutions are rather elastic than unstable . 
Illustrations from the Constitutions of Rome and England 
Dangers possibly inherent in Flexible Constitutions . 
Flexible Constitutions suited to aristocratic governments 
Checks applied in Rome and in England . 
Influence of Constitutions on the mind of a nation . 
Illustrations from Rome and England 
Capacity of Constitutions for Territorial Expansion . 
Enumeration of existing Rigid Constitutions 
Circumstances under which Rigid Constitutions arise 
Enactment and amendment of Rigid Constitutions . 
Various modes now in use for amending them . 
How far can Rigid Constitutions be definite or complete? 
Stability of Rigid Constitutions .... 

The interpretation of Rigid Constitutions 
Contrast of Anglo-American doctrines with those of the 

European Continent ...... 

American views as to Interpretation 
' Suitability of Rigid Constitutions to Democracies 
Recent changes of opinion in the United States and England 
Probable future of the two types of Constitution 
Proposals for federalizing the British Constitution 
Possible creation of new States and Constitutions 

ESSAY II 

The Action of Centripetal and Centrifugal Forces 

ON Political Constitutions .... 95-141 

The influence of aggregative and disjunctive forces on po- 
litical societies ... • • • 95 



PAGB 

3-94 
3 

5 
7 



IS 
18 

22^ 

23 
28 

31 
34 

37 
40 

43 
46 

49 
53 

57 
63 
66 

72 



74 
75 

81 / 

84 , 

86/ 



COXTEXTS 



Tendencies which may act either CentripetaJly or Centrifu- 

gally . . . . . . . . . .100 

Influences of Interest and Sympathy . . . .101 

Illustrations of the action of Racial and Religious sentiment 103 
In the progress of civilization, material interest and senti- 
ment may be opposed . . . . . . 107 

How Constitutions may use the existing Centripetal and 

Centrifugal forces . . . . . . .108 

Illustrations from Commerce, Law and Religion . , iii 

Instances of the troubles caused by Racial or Religious sen- 
timent . . . . . . . . .117 

Methods by which Constitutions may disarm or regulate 

the centrifugal forces : illustrations . . . .121 

Difficulties due to differences of colotir in races . . 124 

How the Constitutions of the United States and Switzerland 

have acted . . . . . . . .129 

The Centripetal force generally, but not alwaj'S, dominant 

in European history' . . . . . . -133 

Effects of Conquest and of Dynastic Succession . . 135 

Probable future strength of the centrifugal and centripetal 

forces respectively . . . . . . . 13S 

Present tendency to the enlargement or consolidation of 

States is not necessarily permanent . • . . 140 



ESSAY III 

Primitive Icelaxd . . . . . 
Discover^' and Settlement of Iceland 
Beginnings of a PoUt}^ : the Thing 
Rise of the Gooi or Priest Chieftain 
The first poHtical constitution of the island 
Judicial organization and powers of the Althing 
The Speaker of the Law .... 
Thingvellir and the meetings of the Althing 
General character of the Icelandic RepubUc 
Gro-^-th and character of the law of Iceland 
Complexity of the constitution and the law 
Sotirces of ovir knowledge of the law 
Illustrations of features of the early law . 
An action for the ejectment of ghosts 
The Judicial Duel: Story of Gimnlaug Snake's 

Helga the Fair 

The introduction of Christianity 



142-177 
142 
145 
147 
150 
153 
154 
155 
159 
161 
162 
166 
167 
170 



TonsTie and 



171 
173 



CONTENTS 



Reflections on the early history of Iceland 

Fall of the Republic: subsequent fortunes of the isle 

ESSAY IV 

The Constitution of the United States as seen in 
THE Past ........ iSo- 

Value of contemporary views of an institution 

The Federalist: Alex. Hamilton and James Madison 

The United States in A. D. 1788 .... 

Predictions of the opponents of the New Constitution 
Views of its supporters : dangers feared by them 
Examination of the predictions of 1788 
Characteristic merits and defects of American Democracy 
only slightly foreseen .... 

The Democracy in America of Alexis de Tocqueville 
Merits and flaws in Tocqueville 's study of the United States 
His insufficient knowledge of England 
His preoccupation with France 
The deficiencies observable in his book scarcely affect its 
present value ...... 

Condition of the United States in Tocqueville 's day 
His description of the salient features of the nation 
Advantages which he conceives Democracy to have secured 
Evils he discovers in American Democracy 
Causes which in his view maintain Republican government 
His forecasts : the negroes : weakness of the Federal Union 
Points omitted in his description .... 

Chief events in the United States since Tocqueville 's time 
Chief political changes of the last sixty-seven years 
Examination of Tocqueville's predictions . 
Summary of Tocqueville's conclusions 
General course of events in America since 1788 
What Tocqueville would say to-day . 



PAGE 

175' 

178 



■237 

180 

I8II-— 

182 

186 

188 > 

193 

196 

198'^ 
199 

202 
203 

206 
207 
211 
216 
217 
219 
220 
224 
226 
227 
228 

234 
236 
236 



ESSAY V 

Two South African Constitutions . . . 238-269 
Originality of the Constitutions of the two Dutch Republics 238 
Circumstances under which they arose . • . .240 

Constitution of the Orange Free State .... 243 
Constitution of the South African Republic (Transvaal) . 248 
Observations on the Constitution of the South African Re- 
public ......... 253 



/ 



xvi CONTEXTS 

PAGB 

Is it a Rigid or a Flexible Constitution? . . . .254 

Controversy as to the so-called 'testing power' . . 257 

The Constitution is certainly a Flexible one . . -258 

Observations upon both these Constitutions . . .259 

Comparison of these Constitutions with that of Britain and 

that of the United States . . . • .262 

Relations of Executive and Legislature in these Dutch Re- 
publics . . . . . . . . .264 

Practical Working of the Constitution of the Orange Free 

State . . . . . . . . .266 

Working of the Constitution of the South African Republic 267 
Postscript ......... 268 

ESSAY VI 

The Coxstitutiox of the Commoxwealth of Au- 
stralia . . . . . . . . 270-341 

Interest attaching to the new Constitution of AustraHa . 270 
Origin and progress of the movement for federalizing Au- 
stralia . . . . . . . . .273 

Causes which induced Federation . . . . .277 

Influence of a Pan-Australian sentiment . . . . 2S0 

Physical and racial conditions favouring Federation . . 28 2 

Comparison with the conditions of the United States and of 

Canada . . . . . . . . .285 

Two leading types of Federal Government . . .287 

Distribution of powers between the Nation and the States 

in the Australian Constitution . . . . .289 

Position of the Australian States under the Constitution . 292 
Differences from the Federal systems of the United States 

and of Canada . . . . . . . .295 

The National Government : few restrictions on its powers . 298 
The Legislatiire: Representation of the States in the Senate 299 
The House of Representatives . . . . . .301 

The Executive . . . . . . . . • 3°3 

The Judiciary , . . . . . . . .304 

Question as to Constitutional Appeals: the British Govern- 
ment yield to AustraUan sentiment . . . • 3°5 
Intended working of the scheme of Government: The 

Cabinet 307 

Provision against legislative deadlocks . . . 310 

Relations of the Two Houses . . . . • .311 

Financial provisions: railways and rivers . . • 3^5 



CONTENTS 

liocation of the national capital : admission of New States 
V^Mode of amending the Constitution .... 
Relations of the Australian Commonwealth to the British 
Crown ........ 



//General comparison of the Australian Constitution with that 

of the United States ...... 

Comparison with that of the Dominion of Canada 

Further observations on the Constitution . 

It is less strictly Federal and more National than that of the 

United States ....... 

Its highly democratic character ... 

It contemplates a party system .... 

Difficulties which may arise from the existence of a third 

party 

What political issues are likely to arise in Australia? 

Probable prominence of Economic questions 

Possible creation and admission of New States . 

Will New Zealand enter the Federation? . 

Tendencies to consolidation may be strengthened by dis 

putes with foreign powers ..... 
Future relations of Australia to Britain . . . 



PAGE 

315 
316 

317 

319 
319 
322 

324 
326 

329 

3,3° 

334 
33(> 
337 

339 
339 



CONSTITUTIONS 



I 



FLEXIBLE AND RIGID CONSTI- 
TUTIONS ' 

I. The Constitutions of Rome and England. 

Rome and England are the two States whose con-| 
stitutions have had the greatest interest for the world] 
and have exerted the greatest influence upon it. Out! 
of the republic on the Tiber, a city with a rural terri- 
tory round it no bigger than Surrey or Rhode Island, 
grew a World Empire, and the framework of that 
Empire retained till its fall traces of the institutions 
under which the little republic, circled and threatened 
by a crowd of hostile States, had risen to show her- 
self the strongest of them all. In England a monarchy, 
first tribal and then feudal, developed from very small 
beginnings into a second World Empire of a wholly 
different type, while at the same time the ancient form 
of government, through a series of struggles and efforts, 
guided by an only half-conscious purpose, slowly de- 
veloped itself into a system monarchical only in name. 
That system became in the eighteenth century the start- 
ing-point for all modern political philosophy ^, and in the 
nineteenth' the model for nearly all the schemes of free 

' This Essay was delivered, in the form of two lectures, in 1884, and the names 
Flexible and Rigid were then suggested for the two types of Constitution here 
described. It has been enlarged and revised and brought up to date, but the sub- 
stance remains the same. 

2 The interest which the English Constitution excited in Montesquieu may be 
compared with that which the Roman excited in Polybius. 



4 FLEXIBLE AXD KiaiB COSi^TITUTIOXS 

representative polity that have arisen in the Old World 
as well as for many in the newer countries. 

It is, however, not merely the range of their influence, 
nor merely the fact that, as the Roman Constitution 
worked upon the whole of the ancient, so the English 
Constitution has worked upon the whole of the modern 
world, that makes these two systems deserve constant 
study. Constitutions are the expression of national 
character, as they in their turn mould the character of 
those who use them; and the same causes which made 
both peoples great have made their political institutions \ 
also strong and rich, specially full of instruction for ail 
nations in all times. There were in the fifth century 
B. c. hundreds of commonwealths in the Mediterranean 
countries with republican frames of government, many 
of which bore a general resemblance to that of Rome. 
There were in the fourteenth century a. d. several mon- 
archies in Europe similar in their constitutional outlines 
to that of England, and with what seemed an equal pro- 
mise of rich and free development. Of the former, Rome 
alone survived, destroying or absorbing all the rest. 
Of the latter, that of England is the only one which had 
at the end of the eighteenth century grown into a system 
( at once broad-based and strong, a system which secured 
\both public order and the freedom of the individual citi- 
zen, and in which the people were able to make their 
voice heard and to influence the march of national policy. 
All the others had either degenerated into despotisms or 
remained comparatively crude and undeveloped. Thus 
when, after the flood of Napoleonic conquest had sub- 
sided, the peoples of the European continent began to 
essay the establishment of free constitutions, they found 
in that of England the model fittest to be followed, and 
sought to adapt its principles to their own several 
conditions. 

England, moreover, has been the parent of free 
I governments in a further sense. Though she has not, 
■ like Rome, stretched her system of government till it 



FLEXIBLE AXD RIGID CON^TITVTWXS 5 

embraced the world, she has reproduced it in those 
parts of her transoceanic dominions where her children 
have been able to form self-governing communities. 
Reduced copies of the British Constitution have been 
created in seventeen self-governing colonies. Seven of 
these have in North America been united in a Federa- 
tion whose frame of government is built on British 
lines. Six others, in Australia, have been similarly 
grouped in another Federal Government of a not less 
distinctively British type. And an independent Republic, 
far vaster in population than all these colonies put to- 
gether, has, less closely, but yet in the main and essential 
points, reproduced the principles, although not the form, 
of the institutions of the motherland. It is, therefore, 
to Rome and to England that the eye of the student of- 
political constitutions will most often turn. They repre- 
sent the most remarkable developments of ordered 
political life for the ancient and for the modern world 
respectively. And whoever attempts to classify Consti- 
tutions and to note the distinctive features of the princi- 
pal types they present, will find that it is from Rome and 
from England that illustrations can most frequently and 
most profitably be drawn i. 

II. The Traditional Classification of 
Constitutions. 

The old-fashioned classification of Constitutions which 
has come down to our own times is based on the 
distinction of Written and Unwritten Law, itself an ill- 
expressed and rather confusing distinction, because ins 
lion scriptum is intended to denote customs: and when 
customs have been recorded in writing, they can hardly 
continue to be called unwritten. This classification 
places in the category of Written Constitutions those 
which are expressly set forth in a specially important 

• As to the countries or peoples in which Constitutions in the proper sense can 
be said to exist, see Note at the end of this Essay. 



6 FLEXIBLE AND RIGID CONi^TlTUTIONS 

document or documents, and in the category of Unwrit- 
ten those which began, not in formal agreements, but in 
usage, a, usage which Hves in men's recollections, and 
which, even when it has been to a large extent defined, 
and secured against error, by being committed to writ- 
ing, is recorded as embodying that which men have ob- 
served, and are deemed likely to continue to observe, 
not as that to which they have bound themselves formally 
by a law. 

These terms are, however, not happy terms, although 
the distinction they aim at expressing is a real distinction. 
The line which they attempt to draw between the two 
classes of Constitutions is not a clear or sharp line, 
because in all Written Constitutions there is and must 
be, as we shall presently see, an element of unwritten 
usage, while in the so-called Unwritten ones the tendency 
to treat the written record of custom or precedent as 
practically binding is strong, and makes that record 
almost equivalent to a formally enacted law, not to add 
that Unwritten Constitutions, though they began in 
custom, alwa3^s include some statutes. Moreover, these 
names, while they dwell on a superficial distinction, 
ignore a more essential one to be presently mentioned. 
Let us therefore try to find a better classification. 

If we survey Constitutions generally, in the past as 
well as in the present, we find them conforming to one 
or other of two leading types. Some are natural growths, 
unsymmetrical both in their form and in their contents. 
They consist of a variety of specific enactments or agree- 
ments of different dates, possibly proceeding from dif- 
ferent sources, intermixed with customary rules Avhich 
rest only on tradition or precedent, but are deemed of 
practically equal authority. Other Constitutions are 
works of conscious art, that is to say, they are the result 
of a deliberate effort on the part of the State to lay down 
once for all a body of coherent provisions under which its 
government shall be established and conducted. Such 
Constitutions are usually comprised in one instrument — 



FLEXIBLE AND RIGID CONl:iTITUTIONS 7 

possibly, however, in more than one — an instrument 
solemnly enacted whose form and title distinguish it 
from ordinary laws. We may provisionally call these 
two types the Old and the New, because all ancient and 
mediaeval as well as some few recent Constitutions are 
of the former kind, while most modern ones belong to 
the latter. The distinction corresponds roughly to that 
drawn, in England and America, between common law 
and statute law, or to the Roman distinction between 
ins and lex, so that we might describe the types as Com- 
mon Law Constitutions and Statutory Constitutions re- 
spectively. Yet the line of demarcation is not always a 
plain one. In countries with constitutions of the Com- 
mon Law type, statutes are frequently passed, declaring 
or modifying or abolishing antecedent usage, which su- 
persede and replace parts, possibly large parts, of the 
common law maxims, so that at last most of the leading 
rules can be found in a few great statutes. On the other 
hand, the Statutory Constitutions become developed by 
interpretation and fringed with decisions and enlarged 
or warped by custom, so that after a time the letter of 
their text no longer conveys their full effect. It is, 
therefore, desirable to have some more definite and 
characteristic test or criterion whereby to mark off the 
two types which have been just described in general 
terms. 

III. A Proposed New Classification of 
Constitutions. 

Such a criterion may be found in the relation which 
each Constitution bears to the ordinary laws of the State, 
and to the ordinary authority which enacts those laws. 
Some constitutions, including all that belong to the 
older or Common Law type, are on the level of the 
other laws of the country, whether those laws exist in 
the form of statutes only, or also in the form of recorded 
decisions defining and confirming a custom. Such con- 



8 FLEXIBLE AXD RIGID COyiSTITUTIO^'S 

stitutions proceed from the same authorities which make 
the ordinary laws ; and they are promulgated or repealed 
in the same way as ordinary laws. In such cases the term 
' Constitution ' denotes nothing more than such and so 
many of the statutes and customs of the country as deter- 
mine the form and arrangements of its political system. 
And (as will presently appear) it is often difficult to say 
of any particular law whether it is or is not a part of the 
political Constitution. 

Other constitutions, most of them belonging to the 
newer or Statutory class, stand above the other laws of 
the country which they regulate. The instrument (or 
instruments) in which such a constitution is embodied 
' proceeds from a source different from that whence spring 
the other laws, is repealable in a different way, exerts a 
superior force. It is enacted, not by the ordinary legis- 
lative authority, but by some higher or specially em- 
powered person or body. If it is susceptible of change, 
it can be changed only by that authority or by that special 
\ person or bod}-. When any of its provisions conflict with 

"h I a provision of the ordinary law, it prevails, and the ordi- 
nary law must give way. These are features, partly 
political, partly legal, which mark off the two types of 
Constitution from one another; and although it will 
appear that in some few cases the question to which 
type the Constitution of a particular State belongs may 
be a nice one, still the general legal criteria to be applied 
are clear and definite. In a State possessing a constitu- 
tion of the former — the older — type, all laws (excluding 
of course by-laws, municipal regulations, and so forth) 
are of the same rank and exert the same force. There 
is, moreover, only one legislative authority competent 
to pass laws in all cases and for all purposes. But in a 
State whose Constitution belongs to the latter — the 
newer — type, there are two kinds of laws, one kind higher 
than the other, and more universally potent ; and there 
are likewise two legislative authorities, one superior and 
capable of legislating for all purposes whatsoever, the 
9 



FLEXIBLE AND RIGID VONISTITVTIONS 9 

Other inferior and capable of legislating only so far as the 
superior authority has given it the right and function to 
do so. 

The difference of these two types is best explained 
by illustrative instances. At Rome in the second cen- 
tury B. c. there was but one kind of enactment. All 
leges passed by the general assembly (whether comitia 
centuriata or comitia tributa) were of the same gene- 
rality and the same force. There was but one legis- 
lative authority, the people voting in the comitia. So in 
England, during the last few centuries, there has been 
but one direct legislative authority, viz. Parliament, 
which is supreme, and all whose acts bind every citizen 7 
everywhere. Accordingly in England the laws called 
constitutional differ only in respect of their subject- 
matter from other laws, but are of no higher order. 
Each of such laws, though we call them in their totality 
' the British Constitution,' is alterable by the ordinary 
legislative authority at any moment, just like other laws. 
Between an Act for making a railway from Manchester 
to Liverpool and an Act extending the electoral suffrage 
to all householders or disestablishing the Protestant 
Episcopal Church in Ireland there is no difference what- 
ever in point of form or in degree of authority. In 
Switzerland, however, and in France the case is different. 
The Constitution of the Swiss Confederation is a docu- 
ment which was enacted by the people, and any amend- 
ment of which needs to be similarly enacted by them, 
whereas ordinary laws are passed by the Federal legisla- 
ture of two Houses i. The present Constitution of the 
French Republic was enacted by the two Chambers sit- ,' 
ting together as a Constituent Assembly, and can be 
amended only by the Chambers sitting together in that 
capacity, after each Chamber has separately resolved that 
revision is needed, whereas ordinary laws are passed by 

1 It is unnecessary for the present purpose to call attention to the complication 
introduced in Switzerland by the application of the Referendum plan to ordinary 
laws. 



10 FLEXIBLE A^D RIGID CONSTITUTION'S 

the two Chambers sitting separately. Thus both in 
Switzerland and in France there is a distinction in the 
enacting authority, and therewith also a distinction in 
the quality and force of the laws enacted, the law which is 
called the Constitution being entirely superior to the 
other laws which are passed by the legislature in the 
ordinary every-day course of its action. 

What in the case of each State of the latter or newer 
type may be the higher (and indeed supreme) authority 
which is alone competent to enact a Constitution depends 
upon the provisions of each particular system. It may be 
the whole people, voting by what is sometimes, though 
not very happily, called a plebiscite. It may be a body 
specially elected for the purpose, which dissolves w^hen 
its work has been completed. It may be certain local 
bodies, each voting separately on the same instrument 
submitted to them. It may be, as in the case just 
mentioned of France, the ordinar}' legislature sitting in 
a peculiar way, or acting by a prescribed majority, or 
rendering several successive votes to the same effect 
at prescribed intervals of time. These are matters of 
detail. The essential point is that in States possessing 
Constitutions of the newer type that paramount or fun- 
damental law which is called the Constitution takes 
rank above the^ordinary laws, and cann^ be changed 
by the ordinary legislative .auth,ority. 

I have sought in many quarters for names, necessarily 
metaphorical names, suitable to describe these two types 
of Constitution. They might be called ]\Ioving and 
Stationary, because those of the older kind are virtually 
never at rest, but are always undergoing some sort of 
change, however slight, in the course of ordinary legis- 
lation, while those of the newer type abide fixed and 
stable in their place. Or they might be described, the 
former as Fluid, and the latter as Solid or Crystallized. 
When a man desires, to change ^ the composition of a 
liquid, he pours in some other liquid or dissolves a solid 

1 /. e. to change mechanically, not necessarily chemically. 



FLEXIBLE AND RIGID CONSTITUTIONS 11 

in the liquid, and shakes the mixture. But he who wishes 
to alter the composition of a solid must first dissolve 
it or fuse it, and then, having got it into a liquid or gase- 
ous state, must mix in or extract (as the case may be) the 
other substance. The analogy between these two pro- 
cesses and those whereby a Constitution of the older and 
one of the newer type are respectively changed might 
justify these names. But there is another and simpler 
metaphor, which, though not quite perfect, seems on 
the whole preferable. Constitutions of the older type 
may be called Flexible, because they have elasticity, 
because they can be bent and altered in form while re- 
taining their main features. Constitutions of the newer 
kind cannot, because their Hues are hard and fixed. 
They may therefore receive the name of Rigid Consti- 
tutions : and by these two names I propose that we 
shall call them for the purposes of this inquiry. If 
the characteristics of the two types have not been made 
sufficiently clear by what has been already said, they 
will probably become clear in the more detailed ex- 
amination of them, to which we may now proceed. 

I begin with Flexible Constitutions, not only because 
they are more familiar to students of Roman history 
and to Englishmen, but also because they are anterior 
in date. They are indeed the only constitutions which I 
the ancient world possessed, for although, in the absence j 
of Aristotle's famous treatise On Polities, we know com- 
paratively little about most of the constitutions even of 
the more famous Greek cities (except Athens), and prac- 
tically nothing about any others, save those of Rome:\ 
and Carthage, there are reasons, to be given presently, ^ "*- 1 
why we may safely assume that all of them belonged 
to the Flexible type. But in the modern world they 
have becorhe Vare. Excluding despotically governed 
countries, such as Russia, Turkey, and Montenegro, 
there are now only three in Europe, those of the United 
Kingdom, of Hungary — an ancient and very interesting 
Constitution, presenting remarkable analogies to that 



12 FLEXIBLE ASD RIGID COXSTITUTIOXS 

of England — and of Italy, whose constitution, though 
originally set forth in one document, has been so changed 
by legislation as to seem now properly referable to the 
Flexible type. Elsewhere than in Europe, all Consti- 
tutions would appear to be Rigid ^. 

But a preliminary objection deserves to be first con- 
sidered. Can we properly talk of a Constitution at all 
in States which, like Rome and England, draw no formal 
and technical distinction between laws of dififerent kinds ? 
Since there was at Rome and is in England but one legis- 
lative authority, and all its statutes are of equal force, 
how distinguish those which relate to the general frame 
of government from those which embody the minor 
details of administration? The great Reform Act of 
A. D. 1832, for instance — and the same remark applies 
to the parliamentary reform Acts of 1867 and 1884 — 
was clearly a constitutional statute. But it contained 
minor provisions which no one could call fundamental, 
and some of which were soon changed by other statutes 
which would scarcely, be described as constitutional. 
There are many statutes of which, as of the ^Municipal 
Reform Act of 1834 (and I may add as of the Local 
Government Acts of 1888 and 1894), it would be hard 
to say whether they are or are not constitutional statutes, 
and there are statutes which would not be termed consti- 
tutional (such as the Scottish Universities Act of 1852), 
which have in fact modified such a momentous consti- 
tutional document as the Act of Union with Scotland 
(5 Anne, c. 6, art. xxv). 

Technically, therefore, we cannot draw a distinction 
between constitutional and other laws. There was in' 
strictness no Roman Constitution. There is no British 
Constitution. That is to say, there are no laws which 
can be definitely marked ofif as Fundamental Laws, de- 
fining and distributing the powers of government, the 
mode of creating pubhc authorities, the rights and immu- 

1 Except that of the South African Republic (Transvaal). The cases of the 
British self-governing colonies will be presently referred to. 



FLEXIBLE AXD RIGID CONSTITUTIONS 13 

nities of the citizen. That which we call the Constitu- / 
tion of the Roman State, that which we now call the ■<[ f 
Constitution of the United Kingdom, is a mass of prece- 
dents, carried in men's memories or recorded in writing, 
of dicta of lawyers or statesmen, of customs, usages, un- 
derstandings and beliefs bearing upon the methods of 
government, together with a certain number of statutes, 
some of them containing matters of petty detail, others 
relating to private just as much as to public law, nearly 
all of them presupposing and mixed up with precedents 
and customs, and all of them covered with a parasitic 
growth of legal decisions and political habits, apart from 
which the statutes would be almost unworkable, or at 
any rate quite different in their working from what they 
really are. The most skilful classifier could not draw 
up a list that would bear criticism of Roman or of British 
statutes embodying the Constitution of either State : 
and even if such a list were prepared, the statutes so 
classified would fail to contain some cardinal doctrines 
and rules. Such a list, for instance, of British statutes 
would contain nothing about the Cabinet, and very little 
about the relations of the House of Commons to the 
House of Lords. On such subjects as the control of the 
House of Commons over foreign affairs, the obligation of 
the Crown to take, or the possible right of the Crown in 
certain cases to overrule, the advice of its ministers, no 
light would be thrown. Yet the statutes form the clearest 
and most manageable part of the materials which make 
up the British Constitution. Those other materials which 
have been referred to are by their very nature vague 
and indeterminate, unsusceptible of classification, and in 
many instances incapable of being set forth in definite 
rules 1. A certain part of them is already, or is on the 
way to become, obsolete. Another part is matter of 
controversy between different schools of jurists or his- 
torians. The same thing was true of Rome, for at Rome 

1 This point has been brought out with admirable force in Mr. Dicey's Law of 
the Constitution. 



14 FLEXIBLE AXD RIGID CONSTITUTIOXS 

it would seem that no statute defined the power of the 
consuls, nor their relation to the Senate, nor set limits 
to the quasi-legislative authority of that great magistrate 
the Praetor. So far from being clearly ascertained were 
the powers of the Senate, that in Cicero's time it was 
matter of constitutional debate whether its decrees had 
or had not the full force of law ^ ; and men took one view 
or the other according to their political proclivities, just 
as in England men at one time differed regarding the 
right of the House of Lords to deal with money bills. 

These facts are of course obvious enough to-day to 
every English lawyer, and indeed to those laymen who 
have some tincture of historical or legal knowledge. 
It is otherwise with the general public. To them the 
word Constitution seems to represent something defi- 
nite and positive. !Much of the current talk about the 
danger of altering the British Constitution - seems to 
spring from the notion that the name represents a con- 
crete thing, an ascertainable and positive definite body 
of rules laid down in black and white. The Romans had 
no single word to convey what we mean by ' Constitu- 
tion.' Even in the last days of the Republic Cicero 
had to use such phrases as forma, or ratio, or genus rei 
publicae, or leges ef mstituta; and what we call ' consti- 
tutional law ' appears in the jurists of the Empire as 
ius quod ad statiim rei Romanae spectat ^. 

The objection, however, w^hich we have been con- 
sidering, goes only to misconceptions that may arise 
from the word ' Constitution,' not to the use of the word 
itself, for some such word is indispensable. The thing 
exists, and there must be a name to describe it. A thing 
is not the less real because its limits cannot be sharply 
defined. A hill is a hill and a plain a plain, though you 
cannot fix the point where the hill subsides into the plain. 

1 See as to this, Essay XIV, p. 716. 

s I have allowed these lines to remain, thoug-h they were more applicable in 
1884 than they are in looo, when so many changes have been effected that argT> 
ments about the danger of changing the Constitution are less frequently heard. 

3 Ulpian in Digest, i. i, 2. 



FLEXIBLE AND RIGID CONSTITUTIONS 15 

' The aggregate of the laws and customs through and ' \ ^ 
under which the pubHc Ufe of a State goes on may fitly be 
called its Constitution ; and even the still vaguer phrases, 
' Spirit of the Constitution,' ' Principles of the Constitu- 
tion,' may properly be used, since they too describe a 
general quality or tendency pervading the whole mass 
of laws and customs that rule a State which gives to this 
mass a character dififering from that of the Constitution 
of any other State ; just as each great nation has what we 
call a National Character, though this character can be 
more easily recognized than defined. 



IV. The Origin of Flexible Constitutions. 

Now let us return to consider the history and the 
attributes of Flexible Constitutions. We have seen 
that they are older than those of the Rigid type. It 
may be thought that this is so because they are more 
compatible with a rude condition of society, and be- 
cause springing out of custom, always the first source 
of law, they are the simplest and most obvious form 
which regular political society can take. This is true, 
but does not fully explain the phenomena. 

A Constitution properly so called is a frame of political 
society organized through and by law, that is to say, one 
in which law has established permanent institutions with 
recognized functions and definite rights. Now such 
forms of organized political society appear first in small 
communities, whether Urban, like the City States of 
Greece, or Rural, like those of early England or mediae- 
val Switzerland. Wherever in the earlier stages of civili- 
zation we find large communities, like Egypt, Assyria, 
Peru, Russia in the sixteenth century, we find that a 
tribal organization has passed into a despotism^, appa- 



't 



* I use the term ' despotism ' for convenience, but of course no monarchy is ab- 
solutely despotic, and least of all perhaps in the ruder ages ■ for monarchs are 
always amenable to public opinion, and most so when they are the leaders of a 
tribe or people in arms. The real distinction is between a government checked 



16 FLEXIBLE AXD RIGID CONSTITUTIONS 

rently without passing through the intermediate stage 
of a more or less restricted monarchy. Now in a small 
area men usually organize themselves in a regular com- 
munity by vesting legal authority in a mass meeting of 
the citizens. The Folk Alot of our Teutonic ances- 
tors, like the still surviving Landesgemeinde of Uri or 
Appenzell, represents in a rural community what the 
dyopd represents in Homeric Greece, what the iKKXrjdia 
represents in the later Greek cities, and what the comitia 
represent at Rome ; I might add, what (in a more rudi- 
mentary form) the popular meeting represents to-day in 
Albania and what the similar meeting called a Pitso re- 
presents among the Basuto and Bechuana Kafirs. Such 
meetings, like the New England Town ^Meeting, are 
Primary, not Representative. They consist of all the 
freemen within the community, though, in their earlier 
stage, it is in practice the leading men who determine 
the action of the whole assembly. They make such laws 
as there are. Being not only the supreme, but the only 
legislative authority, they can at any moment change the 
laws they deem fundamental, if there are any such laws,, 
for the more backward races remain in the stage of mere 
custom, and do not reach the conception of a funda- 
mental law. Whether the system of their government is 
formally embodied in one group of specially important 
laws, or, as more often happens, is left to be collected 
from a number of enactments connected and supple- 
mented by usages, that system remains on a level with 
all the other laws and usages, because it emanates 
from the same source, viz. the governing primary 
assembly. It is not till the growth of some scheme of 
4 representation has made familiar the distinction between 
^ the authority of the people themselves and that of their 

I by religious sentiment consecrating ancient usage and by the fear of insurrection, 
and a government checked by well-established institutions and legal rules. As to 
Russia, it may be noted that though she has no Constitution in the proper sense, 
there are said to exist three Fundamental Laws of the Empire— that declaring 
the sovereign's autocratic power, that requiring him (or her) to be a member of 
the Orthodox Church of the East, and that fixing the rule of succession to the 
throne. 



FLEXIBLE AND KWID CONlSTITUTWNki 17 

representatives that truly Rigid Constitutions appear, 
for it is not till then that a method suggests itself of 
enacting a kind of law which shall be superior to that 
which the ordinary legislative body creates. Accordingly 
the Primary Assembly, whether in ancient Greece and 
Italy or in mediaeval Europe, works for some time, and 
may create by its constant action what is practically 
a Constitution (i.e. a set of established rules embodying 
and directing the practice of government), before the 
idea of a regular political Constitution emerges. That 
idea comes into being when in the progress of political 
thought and of jurisprudence men begin to distinguish 
between laws and customs which relate to the structure 
of the State and the management of its affairs and 
those which relate to other matters, such as the civil 
rights of individuals ; and when they also distinguish 
between rules and usages which are fixed and settled, 
because generally observed and regularly applied to re- 
current facts, and the particular decisions taken in parti- 
cular cases. In this sense the Romans may have begun 
to feel they had a Constitution before they had gone far 
in the conquest of Italy. Our English ancestors reached 
the same consciousness in the fourteenth century, when 
much stress began to be laid upon political -precedents, 
and Parliament, by this time a Representative body, and 
thereby entitled to speak for the nation, had definitely 
established its rights as against the Crown ^. The Con- 
firmation of the Charters together with the statute De 
Tallagio Non Concedendo of a. d. 1297 is often taken as 
marking the first form of the plainly settled English Con- 
stitution, but perhaps the successful resistance of Parlia- 
ment to King Edward the Third sixty years later is a 
better point to choose. Anyhow the language of Chief 

1 The history of England illustrates what is here said regarding small and 
large communities. The Folk Mot of the West Saxons when it passed into the 
Magnum Concilium of all England, though it remained in theory a Primary As- 
sembly, was practically no longer a meeting of all freemen. It could not have 
continued to embody and safeguard the constitutional rights of the people but for 
the later invention of Representation, which made it again a virtually Popular 
though no longer a Primary Assembly. 



18 FLEXIBLE AND RIGID CONSTITUTIONS 

Justice Fortescue (under Henry the Sixth) shows how 
clearly drawn the main lines of the Constitution had be- 
come in his time. When this stage has been reached, 
efforts are sometimes made to give to these constitu- 
tional rules, or to certain among them, an exceptional 
degree of force and permanence. Such rules may be 
embodied in a document of special sanctity ; or they may 
be protected by oaths. But the creation of a truly Rigid 
Constitution comes later, when some system of repre- 
sentation has appeared. I shall presently return to ex- 
amine the causes which produce it. 

V, The Strength and Weakness of Flexible 
Constitutions. 

The names ' Flexible ' or ' Fluid,' which I have sug- 
gested for Constitutions of this type, seem to suggest 
that they are unstable, with no guarantee of solidity 
and permanence. They are in a state of perpetual flux, 
like the river of Heraclitus, into which a man cannot 
step twice. Not only are new laws constantly passed 
which more or less affect them, but their mere working 
tends to alter them daily. Just as every man's character 
is being every day insensibly modified by the acts he does, 
by the thoughts he cherishes, by the emotions which each 
new experience of life brings with it, so every decade 
saw the Constitution of Rome, and sees the Constitution 
of England, slightly different at the end of even so short 
a period from what it was at the beginning. Even a de- 
liberately conservative policy cannot arrest this process 
of variation. If the change does not for a time appear 
in the laws, it is in progress in the minds of men, and may 
have all the more violent a working when it begins to 
tell upon legislation. A reaction, such as that carried 
through by Lucius Cornelius Sulla at Rome, or that 
which followed the fall of the Cromwellian Protectorate 
in England, is almost as fertile in change as a time of 
revolution. The past can never be effaced, since the 



FLEXIBLE AND RIGID CONSTITUTIONS 19 

recollection of it is an element in shaping the future, and 
the measures taken to restore a status quo ante always 
contain much which was not in that status quo ante, much 
which is in itself new, and the source of further novelties. 
The only cases in which constitutional development can 
be said to stop are those where, as at Venice and in some 
of the cities of post-mediaeval Switzerland, an oligarchy 
gets control of the government, and, in extinguishing 
the spirit and the habits of freedom, arrests the natural 
processes of movement and development until some 
powerful neighbour overthrows the State, or internal 
economic changes induce a revolution. Even under a 
despotism, the system of government changes insensibly 
from century to century, as it did in the old French 
monarchy, and as it has recently done among a people 
so stagnant as the Turks. But despotic systems, being 
scarcely classifiable as Constitutions, do not come within 
our present inquiry. 

These things being so, it seems natural to assume that 
Flexible (the so-called 'unwritten') Constitutions, having 
been enacted and being alterable by the ordinary legis- 
lative authority, and not being contained in any specially 
sacred instrument, will in fact be subject to frequent and 
large changes, and will moreover be so readily trans- 
gressed in practice, that they will furnish an insufficient 
guarantee for public order and for the protection of 
private rights. 

The facts, however, do not support this assumption. 
Let us take our two typical instances, Rome and Eng- 
land. The Roman Constitution is an extreme case of 
a Frame of Government capable of being changed in 
the quickest and simplest way. Nothing was needed 
but a vote of the comitia, on the proposition of a com- 
petent magistrate, accompanied by the silence of the 
tribunes. No doubt any single tribune could paralyse 
the action of the comitia, but in such a community as 
Rome became in the later days of the Republic it must 
often have been easy for those who desired a change 



20 FLEXIBLE AND RIGID CONSTITUTIONS 

to ' get at,' or to remove, an obnoxious tribune. Yet 
the Constitution of Rome, regarded on its legal side, 
changed comparatively little in the three centuries that 
lie between the Licinian laws and the age of Sulla, for 
most of those deviations from ancient usage which, as 
we can now see, were working towards its fall, were in 
form quite legal, being merely occasional resorts to ex- 
pedients which the Constitution recognized, though they 
had been more rarely and more cautiously used in older 
and better days. So in England, the exercise of the 
sovereign power is lodged in an assembly which can, on 
occasion, act with extraordinary promptitude, as when 
some while ago (April 9, 1883) the Explosives Act was 
passed through the House of Commons in a few hours 
(the standing orders having been suspended), and having 
been forthwith passed by the House of Lords also, re- 
ceived the royal assent next day. So the most sacred 
rules and principles of the Constitution might with per- 
fect legality of form be abolished — Magna Charta and 
the Bill of Rights and the Act of Settlement included — 
just as quickly as the Explosives Act was passed. Yet 
the main lines of the English frame of government have 
since 1689 and 1701 remained legally the same; and the 
most important changes made since the latter year have 
been effected after long and strenuous controversies^. 
We all know how hard it is to secure even small con- 
stitutional improvements, such as the abolition of the 
provision, confessedly useless and certainly troublesome, 
which obliges a member of the House of Commons to 
vacate his seat and seek re-election on his being ap- 
pointed a Minister of the Crown. 

One explanation of this apparent paradox is (though 
sometimes neglected) obvious enough. The stability 
of any constitution depends not so much on its form as 
on the social and economic forces that stand behind and 
support it ; and if the form of the constitution corre- 

1 The two most important changes, the Union with Scotland and the Union 
with Ireland, were, however, among those most quickly carried through. 



FLEXIBLE AND RIGID CONSTITUTIONS 21 

spends to the balance of those forces, their support 
maintains it unchanged. Two other reasons deserve to 
be more fully stated. 

A Flexible or Common Law Constitution sometimes 
owes its stability to the very conditions which have 
enabled it to grow out of isolated laws and mere usages 
into a firmly settled Frame of Government. There have 
no doubt been many cases, such as those of most of the 
Greek cities of antiquity, where the eager restless spirit 
of the people and the violence of faction never allowed 
any system of government to last long enough to strike 
deep root. Such constitutions were often enacted all 
in one piece, and would have been made Rigid, had the 
citizens who enacted them known how to make them so. 
They were seldom the growth of long-continued usage. 
But the best instances of Flexible Constitutions have 
been those which grew up and lived on in nations of 
a conservative temper, nations which respected antiquity, 
which valued precedents, which liked to go on doing 
a thing in the way their fathers had done it before them. 
This type of national character is what enables the 
Flexible Constitution to develop ; this supports and 
cherishes it. The very fact that the legal right to make 
extensive changes has long existed, and has not been 
abused, disposes an assembly to be cautious and mode- 
rate in the use of that right. Those who have always 
enjoyed power are least likely to abuse it^. This truth 
might be illustrated both from Rome and from England ; 
and, indeed, from Switzerland also, though the argument 
which tries to prove the stupid conservatism of demo- 
cracy from the habits of rural communities in the last- 
named country has been pressed too far by Sir H. Maine 
and others, since in rural communities, where nearly 
every one is a citizen, and well ofif, and most men about 
equally well off, the usual motives for making political 
changes do not exist. 

A further reason may be found in the fact that a con- 

1 ' ApxaiOirXovTwv SeairoTuiv ttoXAt) x<»P'S, Aesch. A£'am. 1002. 



22 FLEXIBLE J.XD RIGID COXSTITUTIOXS 

stitution which has come down in the form of a mass of 
laws, precedents and customs is not only more mysteri- 
ous, and therefore more august, to the minds of the ordi- 
nary citizens than one they can read in a document, but 
is not felt by them to lie at their mercy and to live only 
by their pleasure. A constitution embodied in a docu- 
ment which they have seen drafted, and have enacted by 
their votes, has no element of antiquity or mystery. It 
issues from the sovereignty of the people, it reminds 
them of their sovereignty, it suggests to them nothing 
more exalted. Perhaps it has been the work of one 
party in the State ; and if that party becomes discredited, 
it may share the discredit. The dignity which a remote 
and half mythic origin gives to constitutions, as it does 
to royal families, was in the ancient world and the ^Middle 
Ages enhanced by religious associations. In Greece and 
Italy the tutelary deities of the city watched over the 
oldest laws. In mediaeval countries the order of the 
State seemed an expression of the Will of God. Although 
these sentiments have vanished from the modern world, 
the fact that an old constitution represents a long course 
of progressive development, or, to use a somewhat vul- 
garized term, of evolution, gives it some claim on the 
respect of imaginative or philosophical minds. These 
sources of moral strength have been found sufficient 
in many countries to secure an enduring life for political 
institutions which the people, or a legislative body, had 
it in their power to change, and which, in some instances, 
ought to have been replaced by other institutions more 
suited to their altered environment. 

It would, therefore, be an error to pronounce Flexible 
Constitutions unstable. Their true note, their distinctive 
merit, is to be elastic. They can be stretched or bent 
so as to meet emergencies, without breaking their frame- 
work ; and when the emergency has passed, they slip back 
into their old form, like a tree whose outer branches 
have been pulled on one side to let a vehicle pass. Justbe- 
cause their formi is not rigidly fixed, a temporary change 



FLEXIBLE AND RIGID CONSTITUTIONS 23 

is not felt to be a serious change. The sentiment of re- 
spect for the established order is not shaken. The old 
habits are maintained, and the machine, modified perhaps 
in some detail which the mass of the people scarcely 
notice, seems to go on working as before. 

Whether the working is really the same is another 
matter. During two centuries and a half, from Edward 
the Third till James the First, the Constitution of Eng- 
land remained in its legal aspect scarcely altered. Though 
at some moments within that period Parliament seemed 
to have mightily gained on the Crown, and at others the 
Crown seemed to be dominating Parliament, yet it was, 
until the Civil War, doubtful whether any permanent 
change had been effected. From the days of Queen 
Anne to those of William the Fourth the Constitution 
preserved a legal character practically the same. But 
it had been altered essentially in substance. So we may 
say that while the Flexible character of a constitution 
sometimes enables it to recover from shocks without 
injury, that character sometimes conceals the effects 
of a shock, since these effects may take the form of 
changes of usage and changes of opinion among the 
citizens which have not been expressed, perhaps hardly 
can be expressed, in a definite legal form. The relations 
to one another of the two Houses of the British Parlia- 
ment, and the relations of Parliament to the now self- 
governing British Colonies, are instances in point. 

No constitution illustrates these phenomena better 
than did that of Rome. It was a complicated piece of 
work, made of many pieces, firmly attached, yet each 
piece playing freely. It had to be bent, twisted, stretched 

>!- in many ways, under the pressure of divers exigencies. 

., But it stood the strain of being bent or stretched, and 
when the force that had bent it was withdrawn, could 
return so nearly to its original shape as to seem to have 
never been disturbed. The change from consuls to 
military tribunes, the frequent appointment of a dictator, 
the memorable episode of the Decemvirate, the creation 



24 FLEXIBLE AXD RIGID CONlSTITUTIONS 

of new magistracies, even the admission of new and 
sometimes large masses of persons to citizenship and 
voting power, and the adaptation of its old machinery 
to the new task of governing conquered provinces, did 
not, during several centuries, permanently disturb its 
balance or seriously shake its main principles. Sus- 
pensions of the ordinary rights of the private citizen, 
extensions of the ordinary powers of the magistrate, 
which would have ruined most States by setting dan- 
gerous precedents, were at Rome found harmless be- 
catise law and custom recognized them as expedients 
available in case of need, and, in legalizing them, took 
away their revolutionary character. Thus, being parts 
of the Constitution, though parts to be used only in 
emergencies, they did not shock conservative sentiment 
nor encourage attempts pernicious to freedom — did not, 
that is to say, until at last the character of the city popu- 
lation had so completely changed and the dominions of 
the Republic had so prodigiously grown that the old 
Constitution was obviously out of date, unfit for work 
immensely heavier than that for which it had been 
constructed. 

A Greek city, or an Italian city of the Middle Ages, 
which delivered itself into the hands of a dictator when 
pressed by its neighbours, almost invariably found that 
^ ~ it had given itself a master who refused to resign his 
power when the danger was past, but continued to rule 
as a Tyrant or Signore. This happened not merely be- 
cause the people were passionate and the leading men 
ambitious, for there was plenty both of passion and 
of ambition among the Romans, but largely because 
in those cities no provision was made for such emer- 
gencies; so that when it became necessary to place 
extraordinary powers in one or few hands, the Consti- 
tution received a violent wrench, from which it might 
not recover. At Rome the contingency had been fore- 
seen, and the mode of meeting it was legal. A spirit 
had been formed among the body of the people as well 



FLEXIBLE AND RIGID CONSTITUTIONS 25 

as among the leading men which held ambition in check. 
The dictator was not intoxicated by his elevation. The 
citizens did not lose their faith in the soundness of their 
system; and it justified their confidence. 

The elasticity of the British Constitution appears in 
somewhat different features, less striking perhaps than 
those which mark Rome, but not less useful. We Eng- 
lish appoint no dictators, seeing that we have always 
fortunately had a permanent head of the Executive, 
though latterly one rather nominal than real, and have 
seldom been exposed to the dangers which the city-states 
of the ancient world had to fear. But we have kept in 
reserve a wide and vague prerogative, which, though it 
cannot in practice be put in force against the will of the 
representative House of Parliament, may be employed 
to effect things far more important than many other 
things for which express legislative authority is required. 
/The control of the army and navy and the control of 
foreign policy are instances. There are, moreover, ways 
in which the normal powers of the Executive may be 
immensely increased. When a statute, such as the 
Habeas Corpus Act, is suspended, or when a Vote of 
Credit for a very large sum of money is passed, the 
control of the ordinary law and courts in the one case, 
and the control of the House of Commons in the other 
case, over the Ministers of the Crown, is for the time 
being (especially if Parliament is not sitting) and for 
some purposes practically suspended ; and the Sovereign 
(or rather the Cabinet) of to-day is almost replaced in 
the position of the last Tudor or the first Stuart. Strin- 
gent measures to repress disorder may be taken at home, 
military operations may be threatened or begun abroad 
which would be beyond the legal competence of the 
Crown in the former case and its ordinary discretionary 
powers and functions, as fixed by custom, in the latter. 
So too when it became necessary in view, not of an emer- 
gency, but of the general convenience of administration, 
to delegate to inferior authorities the supreme legisla- 



26 FLEXIBLE AND RIGID CONSTITUTIONS 

tive power of Parliament, advantage was taken of the old 
royal prerogative and of that ancient body the Privy 
Council. Parliament gave power to the Crown to issue 
Orders in Council dealing with large classes of matters 
which must otherwise have been dealt with by statute ; 
and these Orders take effect sometimes at once, some- 
times when a certain period has elapsed during which 
they have lain before Parliament and received from it no 
disapproval. In this way a vast mass of secondary le- 
gislation is annually enacted which, though it does not 
directly issue from Parliament, carries parliamentary 
authority, and does not infringe the principle that Par- 
liament is the onl}^ true source of law. And, similarly, 
out of the ancient judicial fvmctions of the Crown and 
of the Council which advised the Crown, functions which 
a century ago seemed to be lapsing into desuetude, 
there has been evolved a new system of judicature. A 
body called the Judicial Committee of the Privy Council, 
somewhat resembling the Consistory of the Roman 
Emperors, has been created, and now acts as a Supreme 
Court of Appeal for all the transmarine possessions of 
Britain, whether Indian or Colonial. 

The merit of this elastic quality in such Constitutions 
as the Roman and the British is that it affords a means 
of preventing or minimizing revolutions by meeting 
them halfway. Let us note how each kind of Consti- 
tution, the Rigid and the Flexible, behaves when a 
serious crisis arrives, in which one section of the nation 
is bent on changing the Constitution, and the other on 
maintaining it. A Rigid Constitution, if the legal means 
provided for altering it cannot be used for the want 
of the prescribed legal majority, resists the pressure. 
It may of course resist successfully, but if so, probably 
after a conflict which has shaken the State and excited 
hostility to it in the minds of a large part of the people. 
It may, however, if the assailing forces are very strong, 
be broken, and if so, broken past mending. A Flexible 
Constitution, however, being more easily and promptly 



FLEXIBLE AND RIGID CONSTITUTIONS 27 

alterable, and being usually a less firmly welded and 
cohesive structure, can bend without breaking, can be 
modified in such a way as to satisfy popular demands, 
can escape revolution by the practical submission of 
one of the contending forces in the particular dispute, 
that submission being recognized as a precedent which 
will be followed, even though it has not been embodied 
in any law or other formal document. The extinction 
of the right once claimed by the House of Lords to 
alter money bills is one instance. Or it may be made 
to evolve some organ which, though really new, conceals 
its novelty by keeping some of the old colour, and thus 
it may continue to work with no palpable breach of con- 
tinuity. The knowledge that a constitution can be 
changed without any tremendous effort helps to make 
a party of revolution less violent and a party of resist- 
ance less stubborn, disposing both to some compromise. 
At Rome the resort to the appointment of military tri- 
bunes with consular power when the plebs demanded, 
and the patricians would not yet consent to the election 
of a plebeian Consul, delayed revolution till opinion had 
so changed that the danger of revolution had passed 
away. So, later, the compromise by which a Praetor 
was created with the functions of a Consul but with a 
special range of duties appeased conservative feeling and 
smoothed the passage from the old order to the new. 
The history of the English Constitution is a history 
of continual small changes, no single one of which, 
hardly even the Bill of Rights at ihe time of the so- 
called Revolution, or the Reform Act of 1832, made 
the system look substantially dififerent. Something no 
doubt was cut away, and something was added, but the 
structure as a whole seemed the same, because far more 
of the old was left than there was added of the new. 

The two main processes which have turned the govern- 
ment of England from the monarchy of the Tudors into^ 
what may be called the plutocratic democracy of to-day 
have been the limitation of the royal prerogative and the 



28 FLEXIBLE AXD RIGID COXHTITUTIOy^S 

transference of the right of suffrage from a few to the 
multitude. Both processes have gone on slowly, by a 
succession of steps, each comparatively small, but all 
in the same direction. Accordingly the strife of parties 
has been mitigated by the existence at all, or nearly all, 
moments, of a large body of persons who desired reform, 
but only a moderate reform. They are the persons who 
impose compromise on the extremists to the right and 
to the left of them, and they can do so because the Con- 
stitution permits small reforms to be easily effected. 
The party of change, which would be a party of revolu- 
tion if it was obliged to have large changes or none, is 
apt to be divided, and its more moderate section is, or 
soon passes into, a party only of reform. The English 
Chartists of 1840-50 caused some alarm. But between 
them and the old Constitutional Whigs there were several 
sections of opinion passing by imperceptible gradations 
into one another ; and when it was seen that the current 
was setting towards changes approximating to those 
which the Chartists demanded, their less violent men 
were by degrees reabsorbed into the general body of 
the Whig or Liberal party, the latter at the same time 
moving with the times ; and some of those changes, in 
particular vote by ballot, were ultimately obtained with 
no great friction. 

It must nevertheless be remembered that in the history 
of most States a crisis is apt to arrive when elasticity 
becomes a danger, in that it tempts people to abuse the 
facility for change. There is no better sign of strength 
in a man's physical constitution than his being able to 
make some short, sudden, and violent effort without 
suffering afterwards from doing so ; and there is nothing 
of which the happy possessor of such strength is more 
proud. Brit those men who have reached middle life are 
aw^are that the temptation to strain one's strength in this 
exultant spirit is perilous. Repeated impunity is apt to 
encourage a man to go on trying experiments when the 
conditions are perhaps less favourable, or when the re- 



FLEXIBLE AND RIGID COySTlTVTIONS 29 

serve of force is less abundant than it was in youth. The 
story goes that the famous Milo of Croton, passing alone 
through a forest, saw an oak into which woodmen who 
were preparing to fell it had driven wedges. Pulling out 
the wedges, he tried to rive it asunder. But he had no 
longer the fullness of his youthful strength. The re- 
turning tree caught him by the hands and held him fast 
till he died. In our own days Captain Webb, stimu- 
lated by his feat in swimming across the English Channel, 
sought still bolder exploits, and perished in the Whirl- 
pool Rapid below Niagara Falls. So the Romans, hav-y 
ing many a time given exceptional powers for special \ 
occasions to their magistrates, fouiidat last that they 
had created^precedents which enabled the old free Con- y 
stitution~^to he in substance^ bVerthrown. Sulla became /^ 
a dictator of a new kind. After a while he resigned his, 
power, but the example showed that monarchy was not^ 
far off. Julius Caesar also received exceptional authority, 
and used it to form an army which extinguished the 
Republic. The dictatorship he had held passed under 
other forms into permanent absolutism, and what was 
practically a revolution was ultimately carried through 
with a certain deference to the old constitutional forms. 
In England, Parliament, during the sixteenth century,! 
once or twice gave powers to the Crown which brought \ 
the Constitution into danger. In the seventeenth cen- | 
tury the monarchy was abolished, and a Protectorate set li- 
up by revolutionary methods. This was the result of a 
war which had destroyed a vital part of the old machine, 
much to the regret of most of those who had in the first 
instance taken up arms. We have never since that date 
(except under King James the Second) seen the Consti- 
tution in any real danger. 

It is, however, often suggested that the enormous 
power possessed by Parliament might be used to upset 
fundamental institutions with reckless haste, and that 
it might therefore be prudent to impose restrictions on 
parliamentary action. And those who note the way in 



30 FLEXIBLE AXD RIGID COXHTITVTIOyS 

which ParHament bends and staggers under the increas- 
ing burden of work laid on it, coupled with the inade- 
quacy of its rules to secure the prompt dispatch of busi- 
ness ^, have frequently predicted that the House of Com- 
mons may one day deliver itself into the hands of the 
Cabinet, the power of party organization having grown 
so strong that the head of each Cabinet will be deemed 
a sort of dictator, drawing his authority, nominally of 
course, from the House of Commons, but really from 
a so-called direct ' mandate ' of the electors 2. Others 
draw a yet more horrible picture of a party machine, 
which they call the Caucus, dictating a policy to the elec- 
tors on the one hand, and to the Cabinet on the other, 
itself reigning in the spirit of a tyrant, but under the 
forms of the Constitution. If the British Constitution, 
as we have hitherto known it, should perish, there is little 
reason to fear it will do so in this eminently ignoble 
fashion ^. 

When Flexible Constitutions come to an end, they do 
so in one of two ways. Sometimes they pass into an 
autocracy, either dying a violent death by revolution, 
or expiring in a more natural manner through the ex- 
tension and development, under legal forms, of one of 
their organs, to a point at which it practically super- 
sedes and replaces the other organs. Sometimes, on 
the other hand, they pass into Rigid Constitutions. 
The causes which induce this latter change belong, 

1 This was written in 1884. Since that j^ear sweeping changes have been made 
in the procedure of the House of Commons which have greatly curtailed the rights 
and opportunities of private members while increasing the powers of the ISIinistrj' 
of the day. They have not, however, made that House able to discharge all or 
nearly all the work that falls on it ; and it is becoming (under the new rules) less 
and less careful in the exercise of its powers of voting money. 

2 This apprehension was often expressed between 1880 and 18S5. Nothing has 
occurred since to justify it so far as the dictatorship of any single person is con- 
cerned ; and it ma}' have in great part arisen from the fact that from 1867 to 1885 
the headships of both the two great parties had been vested in exceptionally vigo- 
rous and influential leaders. There can however be no doubt that the power of 
the Cabinet as against the House of Commons has grown steadilj^ and rapidly : 
and it appears (1901) to be still growing. 

3 Of this supposed danger also much less is heard now than in 1884. The thing 
that was then called the 'Birmingham Caucus' has ceased to be used to terrify 
the timid. 



FLEXIBLE AND RIGID CONSTITUTIONS 



31 



however, to the examination of that second type of Con- 
stitution ; and will be considered when we have surveyed 
some further features characteristic of the Flexible type. 

VI. Aristocracies and Flexible Constitutions. 



Flexible Constitutions have a natural affinity for an 
aristocratic structure of government. I do not mean 
merely that they spring up at times when power is in 
the hands of the well-born or rich, for the stage of society 
in which constitutions, properly so called, begin to exist, 
is nearly always oligarchic, even if there be a monarch at 
the head of it. But there is a sort of natural attraction 
between an aristocracy and an undefined and elastic 
form of government, as there has begun to be, in most 
modern countries, a natural repulsion between such a 
form and a pure democracy. It needs a good deal of V 
knowledge, skill and experience to work a Flexible Con- 
stitution safely, and it is only in the educated classes that 
these qualities can be looked for. The masses of a* 
modern nation seldom appreciate the worth of ancienti 
usages and forms, or the methods of applying precedents.! 
In small democratic communities, such as are the Forest 
Cantons of Switzerland, this attachment to custom may 
be found, because there traditions have passed into the 
life of the people, and the maintenance of ancient forms 
has become a matter of local pride. But in a large nation ^ 
it is only educated nien who can comprehend the ar- 
rangements of a complicated system with a long history, 
who can follow its working, and themselves apply its prin- 
ciples to practice. The uninstructed like something plain, 
simple and direct. The arcana imperii inspire suspicion, 
a suspicion seldom groundless, because the initiated are 
apt to turn a knowledge of secrets to selfish purposes. 
Now a Common Law Constitution with its long series 
of precedents, some half obsolete, some of doubtful inter- 
pretation, is full of arcana. Even to-day, though the pro- 
cess of clarification and simplification has gone on fast 



"^ V 



32 FLEXIBLE A^D RIGID CONSTITUTIONS 

since 1832, dark places are still left in the British Consti- 
tution. 

There is, however, a further reason why Common Law 
Constitutions accord better with aristocratic than with 
democratic sentiment. They allow a comparatively 
-V. wide discretion to the chief officials of State, such as 

the higher magistrates at Rome and the Ministers of the 
Crown in England. The functions of these officials are 
not very strictly defined, because legal enactments, 
though they limit power in certain directions (far more 
rigidly now in England than was the case at Rome), do 
not draw a completely closed circle round it, but leave 
certain gaps, through which tradition and precedent 
permit it, so to speak, to shoot out and play freely. 
Aristocracies prize this latitude. They prize it because 
it is mainly to prominent members of their class that 
offices fall, and these persons are then able to act with 
freedom, to assert their individual wills, to carry out their 
views unchecked by the dread of transgressing a statute. 
On the other hand, the less conspicuous members of 
the upper class have at any rate little reason to fear 
harm from the wide authority of the officials, because 
their social position, and the influence of their family 
connexions, protect them from arbitrary treatment. 
The masses of the people have neither advantage. Very 
few of them can hope to enjoy power. Any one of them 
may suffer from an exercise of it, which, because not 
positively illegal, gives him no claim for redress. They 
have, therefore, everything to gain and nothing to lose 
if they can restrict it by those definite and fixed limita- 
tions which are congenial to Rigid rather than to Flex- 
ible Constitutions. And in the history of most peoples 
a time arrives when, the love of equality being reinforced 
by the distrust of authority, there is a movement to cut 
down the powers of the rulers to the lowest point com- 
patible with the safety of the State. The extent to which 
this process has gone is in any nation a fair test of the 
gains made by the democratic principle upon the aristo- 



■^ 



FLEXIBLE AND RIGID CONSTITUTIONS 33 

cratic. But in this respect the course things have taken 
in England has been very unUke that which they took at 
Rome. One of the first events which the authentic his- 
tory of Rome records is the effort of the plebeians to 
secure a limitation of the power of the Consuls by having 
statutes passed to define it. The effort failed. It is cha- 
racteristic of the Romans that it should have failed. Sta- 
tutes, known afterwards as the Laws of the Twelve Ta- 
bles, were enacted, statutes which doubtless on the whole 
improved the position of the plebeians. But the powers 
of the Consuls remained wide and legally indefinite down 
till the time when life went out of them under the shadow 
of an autocrat who ruled for life. Limited of course 
these powers had to be as time went on and the popular 
element in the constitution was developed, but the limi- 
tations were imposed, not by narrowing the powers 
themselves, but by the introduction of new factors. The 
two Consuls, being chosen from a circle less narrow 
than in the old days, were more frequently at variance 
with one another. Other officials were set up over 
against the Consuls, who could (if they pleased) interfere 
to restrain the Consuls. And thirdly, the permanent 
non-representative Council of Elders (the Senate), com- 
posed mainly of ex-officials, increased its influence, and 
could generally hold the magistrates in check. Things 
went very differently in England. There the prerogative 
of the Crown was the force of which the nobles as well as 
the commons stood in dread, and they united in the effort 
to restrict it down till a time when the commons were 
strong enough to dispense with the help of more than a 
section of the landowning magnates. In steadily reduc- 
ing the prerogative of the Crown, in lopping off some 
parts of it and strictly defining others, they restricted the 
powers of the Crown and its Ministers, until at last they 
had so firmly established the right of the representative 
assembly to prescribe to the Crown what persons it 
should employ as Ministers that the old motive for limit- 
ing the prerogative vanished. Those who had been 



34 FLEXIBLE AXD RIGID COXSTITUTIOXS 

feared as masters were now trusted as servants. The 
people no longer disliked what was left of the royal pre- 
rogative, because their representatives could control the 
persons who wielded it, and the members of the ruling 
assembly began to feel that it was in the public interest, 
and not against their own personal interest, to maintain 
the powers of ^linisters, because many things could be 
done more easily and more promptly through these 
powers than by the passing of statutes for dealing with 
each matter in detail. There may even be a danger, in this 
new condition of things, that the royal prerogative will 
be used too freely, because that prerogative now means 
the will of the leaders of the parliamentan,- majority, 
whose action might at a moment of excitement be ap- 
plauded and sustained by their followers even should it 
transcend the limits fixed by constitutional usage. 

It has been already remarked that the system of checks 

in the Roman Constitution differed essentially from that 

employed in the English. Every constitution must of. 

course have a system of checks, else it will quickly perish, ; 

"^ or, to vary the metaphor, it must so dispose the ballast as 

to enable the vessel to recover her equihbrium after a 

, violent oscillation. At Rome the checks consisted in the 

"^- f coexistence of various magistrates who could arrest one 

another's action, and in a permanent Senate with a large 

*■ though somewhat ill-defined control, while the popular 
^ \ assembly, in theory omnipotent, was in fact restrained 

'■ by a number of curious features in its procedure which 
made it much less effective than was the primary popular 
assembly in most of the Greek republics. It could act 
only when convoked by a magistrate, could have its 
action stopped by another magistrate, and was fre- 
quently overreached or circumvented by the Senate. In 
England, on the other hand, the Crown, which before 
the conflicts of the seventeenth century had been the 
predominant power which needed to be checked, and 
which frequently was checked, by Parliament, becomes 
after that time capable only of occasionally baffling (and 



FLEXIBLE AND RIGID VONNTITUTIONS 35 

that less and less as time went on) the now predominant 
Parliament, while the restraint on hasty or violent action 
by Parliament was found, partly in the division of Par- 
liament into two Houses, and partly, especially after 
the Upper House had begun to lose moral weight, and 
had passed more and more under the control of one party 
in the State, in the fact that an assembly of representa- 
tives, nearly all of whom belonged to the wealthier and 
so-called upper classes, was pervaded by a conservative 
temper. A representative body, the members of which 
are mostly satisfied with the world as it is, and who are 
sufficiently instructed to respect the traditions of admi- 
nistration, is, except where a question arises which stirs 
class passions, less prone to ill-considered action than 
is an assembly of all the citizens, such as was the Ecclesia 
of Athens or Syracuse, where the large majority were 
humble folk, and where the sympathy of numbers made 
the ascendency of emotion over reason doubly danger- 
ous. Thus, as compared with the democracies of the 
city-states of antiquity, the representative character of 
the assemblies of modern Europe has been a moderating 
factor. But these assemblies are now changing their 
character, as the countries in which they exist have 
changed. The progress of science has, through the 
agency of railways and telegraphs, of generally diffused 
education, and of cheap newspapers, so brought the in- 
habitants of large countries into close and constant rela- 
tions with one another and with their representatives, 
that the conditions of a small city-state are being repro- 
duced. A man living at Kirkwall knows what happened 
last night in London, eight hundred miles away, sooner 
and more fully than a man living in Marathon (distant 
eight hours' walking) knew what had happened the day 
before in Athens. The same news reaches all the citizens 
at the same time, the same emotion affects all simultane- 
ously, and is intensified by reverberation through the 
press. The nation is, so to speak, compressed into a much 
smaller space than it filled three centuries ago, and has 



36 FLEXIBLE AND RIGID CONSTITUTIONS 

become much more like a primary assembly than it was 
then. If concurrently with this change there should 
come, as some presage, a closer and more constant con- 
trol of the members of the representative assembly by 
their constituents, the representatives becoming rather 
delegates acting under instructions than men chosen to 
speak and vote because they are deemed trusty and 
intelligent, much of the moderative value which the re- 
presentative system has possessed will disappear. 

It need not be thought that in England at least there 
is any immediate risk of evils to be expected from the 
change which has been noted. Representatives have not 
yet become delegates, and if they do, it will be rather 
their own fault than that of the electors, for the electors 
respect courage and value independence. In England 
the power of party organizations over constituencies and 
members, if it grows, grows slowly. It is, in fact, not so 
much these organizations as small sections of opinion 
or organized ' interests,' seeking some advantage for 
themselves, that try to terrorize candidates. There is 
still a valuable check on possible recklessness on the part 
of Parliament in the fact that it is (unlike some popular 
assemblies) guided by responsible Ministers, who have 
hitherto seldom been mere demagogues, and who have 
experience behind them, prospects of future dignity be- 
fore them, and the opinion of their own class around 
them. All that I wish to point out is that a change has 
passed on the conditions under which representative 
assemblies act, which in making them more swiftly re- 
sponsive to public sentiment, increases some of the risks 
always incident to popular government. History has not 
spoken her last word about Flexible Constitutions. 
Rather may she be opening a new stage in their develop- 
ment. 



FLEXIBLE A\D RKllD V0MSTITUTI0N8 37 



VII. The Influence of Constitutions on the Mind 

OF A Nation. 

We have been considering what are the conditions 
present in a nation which make it prefer a particular 
kind of constitution. Now let us approach the converse 
question, and inquire what will be the influence on the 
political ideas and habits of a nation of these Constitu- 
tions of the Common Law, or Flexible type, and what 
are the features of national character which will enable 
such constitutions to live on and prosper. 

Forms of government are causes as well as effects, 
and give an intellectual and moral training to the peoples 
that live under them, as the character of a parent affects 
the children of the household. Now the Common Law 
Constitution, with its complexity, its delicately adjusted 
and balanced machinery, its inconsistencies, its nuances — 
one is driven to French because there is no English word 
to express the tendency of a tendency — its abundance of 
unsettled points, in which a refined sense can perceive 
what the decision ought in each case to be without being 
able to lay down a plain and positive rule — such a con- 
stitution must undoubtedly polish and mature in the 
governing class a sort of tact and judgement, a subtlety 
of discrimination and a skill in applying old principles 
to new combinations of facts, which make it safe for a 
people to leave wide powers to their magistrates or their 
governing assembly. A sense grows up among those 
who have to work the constitution as to what is and is 
not permissible under it, and that which cannot be ex- 
pressed in the stiff phrases of a code is preserved in the 
records of precedents and shines through the traditions 
which form the minds of the rulers. This kind of consti- 
tution lives by what is called its Spirit. * The letter kill- 
eth, but the spirit giveth life.' 

Evidently, however, it is only among certain nations 
with certain gifts that such a constitution will come to 



38 FLEXIBLE AXD EIGID COXISTITUTIONS 

maturity and become a subject for science as well as 
a work of art. Three things seem needful. One is legal- 
mindedness, a liking and a talent for law. Another is a 
conservative temper, by which I mean the caution which 
declines to make changes save when a proved need for 
change arises, so that changes are made not suddenly, 
j but slowly and bit by bit. The third is that intellectual 
freshness and activity which refuses to be petrified by 
respect for law or by aversion to change. It is only 
where these three qualities are fitly mixed or evenly 
balanced that either a great system of law or a finely 
tempered and durable constitution can grow up. Many 
otherwise gifted peoples have, like the Athenians in an- 
cient and, longo intcrvallo, the Spaniards in modern times, 
wanted one or other of these qualities, and have there- 
fore failed to enrich the world by law or by consti- 
tutions. Perhaps it was partly owing to their possessing 
other gifts, scarcely compatible with these, that the 
Athenians did fail. 

But although, when a nation has reached the point at 
which its law begins to be scientific, the law and the 
constitution become teachers, it must be remembered 
that the training they give is mainly given to the classes 
which practise law and administer the State. For 
though a nation as a whole may come to understand and 
appreciate in outline its constitution, and may attain to 
a fairly correct notion of the functions of each organ of 
government, only a comparatively small section com- 
prehends the system well enough to work it or to criti- 
cize its working. For such comprehension there is 
needed not only some knowledge of history but also 
close and continuous observation of the machinery in mo- 
tion, and either participation in the business of govern- 
ing or association with those who are carrying on that 
business. The mass of the nation cannot be expected to 
possess this familiarity. They are like the passengers 
on board an ocean steamer, who hear the clank of the 
engine and watch the stroke of the piston and admire the 



FLEXIBLE AND RIGID CONISTITUTIONS 39 

revolution of the larger wheels, and know that steam acts 
by expansion, but do not know how the less conspicuous 
but not less essential parts of the machinery play into 
the other parts, and have little notion of the use of fly- 
wheels and connecting-rods and regulators. They can 
see in what direction the vessel is moving, and can con- 
jecture the rate of speed, but they must depend on the 
engineers for the management of boilers and engines, as 
they do on the captain for the direction of the ship's 
course. In the earlier stages of national life, the masses 
are usually as well content to leave governing to a small 
upper class as passengers are to trust the captain and 
the engineers. But when the masses obtain, and feel 
that they have obtained, the sovereignty of the country, 
this acquiescence can no longer be counted on. Men/ 
without the requisite knowledge or training, men who, 
to revert to our illustration, know no more than that 
steam acts by expansion and that a motion in straight 
lines has to be turned into a rotary one, men who are not 
even aware of the need for knowledge and training, men 
with little respect for precedents, and little capacity for 
understanding their bearing, may take command of en- 
gines and ship: and the representative assembly may 
be filled by those who have no sense of the dangers to 
which an abuse of the vast powers of the assembly may 
lead. If such a change arrives, it imposes a severe strain 
on the constitution ; and that elasticity which has been its 
merit may prove its danger. 

It may accordingly be said that one of three condi- 
tions is generally necessary for the salvation of a Flex- 
ible Constitution. Either (i) the supremacy must re- 
main in the hands of a politically educated and politically 
upright minority, or (2) the bulk of the people must be 
continuously and not fitfully interested in and familiar 
with politics, or (3) the bulk of the people, though legally 
supreme, must remain content, while prescribing certain 
general principles, to let the trained minority manage the 
details of the business of governing. Of these conditions 



40 FLEXIBLE AND RIGID COXSTITUTIOXS 

I the first has disappeared from nearly all civilized coun- 
tries. The second has always been rare, and in large 
industrial countries is at present unattainable. The best 
chance of success is therefore to be found in the presence 
of the third; but it needs to be accompanied by a tone 
and taste and sense of public honour among the people 

I- which will recoil from the mere demagogue. 

Both the influence of its constitution upon a nation 
and the need of certain qualities in order to w^ork a 
Flexible Constitution are well illustrated in the history 
of the Roman commonwealth. Of all famous constitu- 
tions it was the most flexible. It lived long and over- 
came many perils because it grew up among a people 
who possessed in an eminent degree the three quahties 
of legalmindedness, of conservatism, and of keen practi- 
cal intelligence. It trained the national mind to a respect 
for order and legality, and had doubtless much to do with 
the forming of that constructive genius which created 
the whole system of Roman private law. It fell at last 
because the mass of the citizens became unfit to dis- 
charge their function in the scheme. They did not, it is 
.true, press into the inner circle of the governing class. 
The success first of the well-born and then of the rich in 
keeping the offices in their own hands all through is one 
^of the most remarkable features of Roman history. But 
they were corrupt and reckless in the bestowal of power, 
and had really ceased to care for the freedom and welfare 
,: of the State. The ruling classes, on the other hand, were 
tempted by the demoralization of the masses to be their 
corrupters, and lost their old respect for legality. Even 
T^ ■ a conscientious philosopher like Cicero did not scruple 
to put prisoners to death without trial, and to justify 
himself by citing an act of lawless violence done four 
centuries before. The leading Romans of that day were 
as fit as ever to work the system, so far as skill and 
knowledge w^ent, but they had not the old regard for its 
principles, nor the old sense of public duty ; and the prizes 
which office offered now that Rome was mistress of the 



FLEXIBLE AND HWID VONl^TlTUTIONS 41 

world were too huge for average virtue to resist. The 
moral forces which had enabled the Roman Constitution 
to work in spite of its extraordinary complexity, and to 
live, in spite of the risks to which its own nature exposed 
it, were now fatally enfeebled. These abuses of power 
on the one hand, and on the other hand the deadlocks 
which the system of checks caused, grew more frequent 
and serious. Each successive wrench which the machine 
received became more violent, because neither faction 
had patriotism enough to try to ease them ofif, and so 
break the force of the shock. From the beginning of / . 
the Republic the chief danger had lain in the immense y 
powers vested in the magistrates. These powers had 
been necessary, because the State was constantly ex- 
posed to attacks from without ; and nothing but the 
sense of devotion to the interests of the State had con- 
trolled the party spirit which rages more fiercely within 
the walls of a city than it does in a large and scattered 
community. Now that Rome had vast dominions to 
rule, and now that her frontiers extended to the very 
verge of civilization, involving her in long wars with 
great monarchies or groups of tribes on those frontiers, 
large powers had to be entrusted to military chiefs, and 
entrusted for long periods. Thus the Republican con- 
stitution fell through the very faults which had always 
lain deep in its bosom, though an over-mastering patriot- 
ism had in earlier days kept them harmless. 

Tt is never easy, in studying the history of an institu- 
tion, to determine how much of its success or its failure 
is due to its own character, how much to the conditions, 
external and domestic, in the midst of which it has to 
work. The fortunes of the Roman Constitution would 
doubtless have been dififerent had Rome been less 
pressed by foreign enemies in her earlier days, or had 
she been less of a conquering power in her later. So 
too it is hard to compare States so dififerent as Rome — 
whose Constitution was always that of a City, and failed 
to widen itself so as to become a Constitution for Italy — 



42 FLEXIBLE AXB RIGID COXSTITUTIOXS 

and England, whose Constitution has always since the 
days of Ecghbert and Ah'red been that of a large and 
originally a rural and scattered community. If, however, 
the comparison is attempted, we may observe that Eng- 
land never, after the fourteenth century, recognized 
such vast powers in the Crown (whether in the Crown 
personally or as exercised by its ^Ministers) as Rome 
granted to her magistrates. In the sphere of public 
law England has applied more successfully than Rome 
did the conception of the inviolability of the rights of 
the citizen as against the organs of the State, although 
that conception is itself Roman. With all their legal 
genius the Romans were too much penetrated by the 
idea of the necessary amplitude of State power to fix 
just limits to the action of the Executive. AMien it was 
necessary to provide for checking a magistrate, they set 
up another magistrate to do it, instead of limiting magis- 
terial powers by statute. Xor did they ever succeed as 
the English have done in disengaging the judicial from 
the executive department of government. In both these 
respects part of the merits of the English Constitution 
may be ascribed to Xorman feudalism, whose precise 
definition of the respective rights of lord and vassal — all 
the lords but one being also vassals, and the greater 
vassals being also lords — helped to form and imprint deep 
the idea that powers, however strong within a definite 
sphere, may be strictly confined to that sphere, and that 
the Hmits of the sphere are fit matter for judicial deter- 
mination. Perhaps the existence in the clergy of a large 
class of men enjoying specific immunities the exact 
range of which had to be settled, and, where possible, 
judicially settled, may have also contributed to train this 
habit of mind. The extent to which England, favoured 
no doubt by her insular position, was able to secure 
domestic freedom while leaving a large discretionary 
authority to the Crown, is usually credited to the rise 
of the House of Commons and the vigilance of its con- 
trol. But much is also to be ascribed to that precise 



FLEXIBLE AND RWID COMSTITUTIONS 43 

definition of tlie rights of the individual which has made 
life and property secure from injury on the part of the 
State, to the habit of holding officials liable for acts done 
in excess of their functions, and to that ultimate detach- 
ment of the judiciary from the influence of the Crown 
which has enabled the individual to secure by legal pro- 
cess the enforcement of his rights. These principles have 
sunk deep into the mind of the nation, and have been of 
the utmost service in forming the habits of thought and 
action by which free constitutions have to be worked. 
They are just as strong as if they were embodied in a 
Rigid Constitution, instead of being legally at the mercy 
of Parliament. But that is because they have centuries 
of tradition behind them, and because the English are 
a people who respect tradition and have been trained to 
appreciate the value of the principles which their ances- 
tors established. 

VIII. Capacity of Constitutions for Territorial 
Expansion. 

One point more remains to be mentioned before we 
quit constitutions of the Flexible type, viz. their suit- 
ability to a State which is expanding its territory and tak- 
ing in other communities whether by conquest or by 
treaty. 

Such constitutions seem especially well suited to coun- 
tries which are passing through periods of change, 
whether internal or external. When new classes of the 
population have to be admitted to share in poHtical 
power, or when the inhabitants of newly-acquired terri- 
tories have to be taken in as citizens, this is most quickly 
and easily effected by the action of the ordinary legis- 
lature. Both Rome and England availed themselves of 
this flexibility in the earlier stages of their growth. 
England, itself created as a State by the expansion of 
the West Saxons, enlarged herself to include Wales 
with no disturbance of her former Constitution, and 



44 FLEXIBLE ASD RKxlD COX.STITL'TlOyS 

similarly fused herself with Scotland in 1707 and with 
Ireland in 1800, in both cases altering the Constitution 
of the enlarged State no further than by the admission 
of additional members to the two Houses of Parliament, 
and by the suppression of certain offices in the smaller 
kingdoms. The ease with which the earlier expansions 
were effected may be attributed to the fact that in 
mediaeval times the prominence of the king made the 
submission of any tribe or territory to him carry with 
it the incorporation of that tribe or territory into his for- 
mer dominions. The popular assembl)' of a community, 
such as were the South Saxons, for instance, sank into 
a secondary place as soon as the king was head of the 
South Saxons as well as of the West Saxons, for the 
council of the united people which he summoned and 
over which he presided became the national assembly 
for all his subjects. In later times, though Scotland and 
Ireland had their separate Parliaments, these could be 
readily united with that of England, because in all three 
countries the popular House was representative. Here, 
however, England has stopped. The vast dominions 
which she possesses beyond the oceans, while legally 
subject to her Crown and Parliament, have not been 
brought into the constitutional scheme of the mother- 
land. Indeed they could hardly be brought in without 
a reconstruction of the present frame of government, 
which would probably have to be efifected by the estab- 
lishment of a Rigid Constitution. 

Similarly the Roman State had its first beginnings in 
the union of neighbouring tribes, whose popular assem- 
blies coalesced into one assembly. As time went on, 
the flexibihty of the constitution permitted the extension 
of political rights to a number of communities which had 
lain outside the old Roman territory. But the process 
presently stopped (so far as effective political expansion 
was concerned), because the representative system had 
not yet been invented. When after the great revolt of 
the Allies in b, c. 90 Rome was compelled to grant full 



FLEXIBLE Ayn RIGID VON^'iTITUTIOMS 45 

citizenship to a large number of Italian communities, she 
did not take what moderns might think the obvious 
course of creating a representative assembly to which 
these allied communities might send elected delegates, 
but merely distributed the new citizens among her old 
tribes, an expedient which so far improved the position 
of the Allies that they became legally equal to Roman 
citizens, and acquired thereby various privileges and 
exemptions, but which extended to them practically no 
share in the government, since few could not come to 
Rome to give their votes in the assembly of the people. 
It may well have been that neither the oligarchs nor the 
leaders of the so-called popular party at Rome were 
willing to resign a substantial part of the power of the 
inhabitants of the City, with the opportunities of bribing 
and being bribed, in exchange for the primacy of a 
Federal or quasi-Federal Italian republic. But that the 
notion of a representative assembly had not crossed 
men's minds appears from the circumstance that the 
Italian Allies themselves, when in the course of their 
struggle they set up a rival government, merely repro- 
duced the general lines of the Roman constitution, and 
did not create any representative council, excellently as 
it might have served their purpose. So strong was the 
influence of the idea of the city community in the ancient 
world, and (it may be added) so little power of invention 
do mankind display in the sphere of political institutions. 
When an expanding State absorbs by way of treaty 
other communities already enjoying a government more 
or less constitutional, the process now usually takes the 
form of creating a Federation, and a Federation almost 
necessarily implies a Rigid Constitution. Cases where 
the Flexible Constitution of one State is stretched to 
take in another (as the Constitution of England was 
stretched to take in Scotland) are rare. The ancient 
Romano-Germanic Empire had a Flexible Constitution, 
which, already in an advanced stage of decay, was ex- 
tinguished by Napoleon. When it was desired to re- 



46 FLEXIBLE AXD RIGID COyi^TITUTIOXS 

establish a German Empire out of a number of prac- 
tically independent States, this had to be done by the 
creation of a federal system under a Rigid Constitution. 
No similar device was required in the case of Italy, be- 
cause the communities which united themselves to the 
kingdom of Sardinia between 1859 and 1871 had not 
theretofore enjoyed constitutional government, had just 
dismissed their whilome sovereigns, were all eager for 
union, and in their eagerness for union cared but little 
for the maintenance of any local rights. 

IX. The Origin of Rigid Coxstitutioxs. 

We may now pass on to examine the other type of 
constitution, that for which I have suggested the name 
Rigid, the specific character whereof resides in the fact 
that every constitution belonging to it enjoys an autho- 
rity superior to the authority of the other laws of the 
State, and can be changed only by a method different 
from that whereby those other laws are enacted or 
repealed. This type is younger than the Flexible type. 
The latter goes back to the very beginning of organized 
political societies, being the first form which the organi- 
zation of such societies took. Rigid Constitutions, on 
the other hand, mark a comparatively advanced stage 
in political development, when the idea of separating 
fundamental laws from other laws has grown familiar, 
and when considerable experience in the business of 
government and in political affairs generally has been 
accumulated. Thus they have during the last hundred 
years been far more in favour than constitutions of the 
Flexible type. 

In Europe they exist in every constitutional country 
except the United Kingdom, Hungary, and Italy. There 
are none in the Asiatic continent, but Asia, the cradle 
of civilization, possesses no constitutional self-governing 
State whatever, except Japan, the Constitution of which, 
established in 1889, bears some resemblance to that of 



FLEXIBLE AND RIGID CONSTITUTIONS 47 

the German Empire. America, as a new continent, is 
appropriately full of them. The Republic of the United 
States has not only presented the most remarkable in- 
stance of this type in the modern world, but has by its 
success become a pattern which other republics have 
imitated, just as most modern States in the Old World 
took England for their model when they estabhshed, 
during the nineteenth century, governments more or 
less free. The Constitutions of all the forty-five States 
of the Union are Rigid, being not alterable by the legis- 
latures of those States respectively. This is also true of 
the Constitution of the Dominion of Canada, which is 
alterable only by the Imperial ParHament. The Consti- 
tutions of the seven Canadian Provinces might, so far as 
their legislatures are concerned, be deemed Flexible, 
being (except as respects the office of Lieutenant-Gover- 
nor) alterable by ordinary provincial statutes, but as all 
Provincial statutes are subject to a Dominion veto, they 
are not within the sole power of the legislatures. Mexico 
and the five republics of Central America, together with 
the nine republics of South America, have all adopted 
Constitutions which their legislatures have not received 
power to change. Africa is the most backward of the 
continents, but she has in the Orange Free State a tiny 
republic living under a Rigid Constitution. It has been 
contended that the Constitution of the South African 
Republic (Transvaal) is referable to the same category, 
but it is really dc iiirc^ and it has always been treated de 
facto, as being a Flexible Constitution i. The Constitu- 
tions of the Australasian colonies present legal questions 
of some difficulty, owing to the way in which the imperial 
Acts creating or confirming them have been drawn. So 
far as the method of changing these Constitutions has 
been prescribed by statutes of the colonies in which 
they exist, it would appear that each can also be changed 
by the legislature of the colony. Where those methods, 
however, are prescribed by the British Parliament, or by 

1 See Essay VII, p. 378. 



48 FLEXIBLE AND RIGID COXSTITUTIONS 

instruments issuing from the Crown, the point is more 
doubtful, and would need a fuller discussion than it can 
receive here. Questions, however, touching the rela- 
tions of a legally subordinate to a legally supreme legis- 
lature lie in a different plane, so to speak, from that with 
which we are here concerned : and we may say that if 
these colonial constitutions are regarded solely as re- 
spects the legislatures of the colonies themselves, they 
are referable to the Flexible type. As to the new Federal 
Constitution of Australia there is no doubt at all. It is 
Rigid ^, for any alteration in it requires a majority of the 
States and a majority of the direct popular vote. All the 
acts of every British colony are subject to a power of 
disallowance by the Governor or the Crown, but (al- 
though it is sometimes provided that constitutional acts 
shall be ' reserved ' for the pleasure of the Crown) this 
power is not confined to acts changing the constitution, 
conformably to the English habit of drawing little dis- 
tinction between constitutional and other enactments. 

All the above-mentioned constitutions are products of 
the last century and a quarter, and it is doubtful whether < 
there existed in a. d. 1776 any independent State the 
constitution of which the ruling authority of that State 
could not have changed in the same way in which it 
changed its ordinary laws. The Swiss Confederation 
does not come into question, for that Confederation was, 
until the French laid hands on it in the last years of the 
eighteenth century, a League of States rather than a 
State, and could not be said to have any constitution in 
the proper sense, not to add that the republics of which 
the league consisted could alter the terms of their league 
in the same way in which they had formed it. The same 
remark applies to the confederation of the seven United 
Provinces of the Netherlands. 

The beginnings of Rigid Constitutions may, however, 

» See as to this Constitution Essay VIII, p. 39i. As to the Constitutions of the 
several Australiaa and other British colonies, reference may be made to the book 
of the late Sir Henry Jenkyns, entitled British Rule and Jurisdiction beyoiid the 
Seas, the publioation of which is announced for a very early date. 



FLEXIBLE AND RIGID VOSi<ITITVTIONS 49 

be traced back to the seventeenth century. The first 
settlers in the British colonies in North America lived 
under governments created by royal charters which the 
colonial legislatures could not alter, and thus the idea of 
an instrument superior to the legislature and to the laws 
it passed became familiar ^. In one colony (Connecticut) 
the settlers drew up for themselves in 1638 a set of rules 
for their government, called the Fundamental Orders. 
These Orders, developed subsequently into a royal char- 
ter, were really a rudimentary constitution. And almost 
contemporaneously the conception appeared in England 
during the Civil War. The Agreement of the People, 
presented to the Long Parliament in 1647, contains in 
outline a Frame of Government for England which was 
meant to stand above Parliament and be not changeable 
by it. So Oliver Cromwell sought by his Instrument of 
Government, promulgated in 1653, to create a Rigid 
Constitution, some at least of whose provisions were to 
be placed beyond the reach of Parliament, and indeed 
apparently to be altogether unchangeable. But his own 
Parliament refused to recognize any part of it as outside 
their right of interference ^. 

From this rapid geographical survey we may now 
return to examine the circumstances under which con- 
stitutions of this type arise. Their establishment is usu- 
ally due to one or more of the four following motives : — 

(i) The desire of the citizens, that is to say, of the 
part of the population which enjoys political rights, to 
secure their own rights when threatened, and to restrain 
the action of their ruler or rulers. 

(2) The desire of the citizens, or of a ruler who wishes 
to please the citizens, to set out the form of the pre- 
existing system of government in definite and positive 
terms precluding further controversy regarding it. 

1 Observations on this topic may be found in the nuthor' a American Common- 
•wealth^ chap, xxxvii. 

2 These documents are printed in Dr. S. R. Gardiner's Cofistitutional Docu- 
ments of the Puritan Revolution. A concise account of the Instrument maybe 
found in Mr. Goldwin Smith's United Kingdom^ vol, i. pp. 605-8. 



4 



50 , FLEXIBLE AND RIGID COXSTITUTIOXS 

(3) The desire of those who are erecting a new poH- 
tical community to embody the scheme of poHty under 
which they propose to be governed, in an instrument 
which shall secure its permanence and make it compre- 
hensible by the people. 

(4) The desire of separate communities, or of distinct 
groups or sections within a large (and probably loosely 
united) community, to settle and set forth the terms 
under which their respective rights and interests are to 
be safe-guarded, and effective joint action in common 
matters secured, through one government. 

Of these four cases, the two former arise where an 
existing State changes its constitution. The two latter 
arise where a new State is created by the gathering 
of individuals into a community, or by the union of 
communities previously more or less separate into one 
larger community, as for instance by the forming of a 
Federation. 

Note further that Rigid Constitutions arise in some 
one of four possible ways. 

I. They may be given by a monarch to his subjects \ 
in order to pledge himself and his successors to govern 
in a regular and constitutional manner, avoiding former 
abuses. Several modern European constitutions have 
thus come into being, of which that of the Kingdom of 
Prussia, granted by King Frederick William the Fourth 
in 1850, is a familiar example. The Sfafuto or Funda- 
mental Law of the Kingdom of Sardinia, now expanded 
into the Kingdom of Italy, was at one time deemed 
another instance. It is now, however, held to be a Flexi- 
ble Constitution. ]\Iagna Charta would have been a 
fragment of such a constitution had it been legally placed 
out of the possibility of any change being made in it 
by the Great Council, then the supreme legislature of 
England, but it was enacted by the king in his Great 
Council, and has always been alterable by the same 
authority. The Ch-arte Constitutionnelle for France issued 
by Louis the Eighteenth in 1814, and renewed in an 



FLEXIBLE AND RIGID CONSTITUTIONS 51 

altered form on the choice of Louis Philippe as king in 
1830, and the Constitutions granted by their respective 
kings to Spain and to Portugal, are similar instances. 

2. They may be created by a nation for itself when 
it has thrown off (or been released from) its old form of 
government, and desires to create another entirely dc 
novo. The various Constitutions of the various French 
Republics from 1790 downwards are instances, as is the 
Constitution of the Orange Free State ^ and the present 
(a. d. 1901) Constitution of Brazil. To this category also 
belong the Constitutions of the original thirteen States 
of the American Union. Two of these States, however, 
were content to retain the substance of the charter-con- 
stitutions under which they had lived as British Colonies, 
merely turning them into State constitutions, with noth- 
ing but the Confederation above them, that Confedera- 
tion being then a mere League and not a National 
Government. The Constitution of the Austrian part of 
the Austro-Hungarian monarchy may also be referred to 
thi^ category. It consists of five Fundamental Laws, 
enacted in 1867, and alterable by the legislature only 
in a specially prescribed manner. 

3. They may be created by a new community, not 
theretofore a nation, when it deliberately and formally 
enters upon organized political life as a self-governing 
State, whether or no as also a member of any larger 
political body. Such are the Constitutions of the States 
of the American L^nion formed since 1790. Such was 
the original Constitution of Belgium, a country which 
had been previously a part of the Kingdom of Holland. 
Such is the Constitution of the Dominion of Canada, 
though it is a peculiar feature of this instrument — arid 
the same is true of the Constitutions of all the self- 
governing British Colonies — that it has been created 
not by the community which it regulates but by an 
external authority, that of the Parliament of the United 
Kingdom, in a statute of a. d. 1867. Being unchange- 

' See Essay VII, p. 361. 



52 FLEXIBLE AND RIGID CONSTITUTIONS 

able by the Dominion Legislature, it is a Rigid Con- 
stitution within the terms of our definition, although 
changeable, like any other statute, by the British Par- 
liament. The new Federal Constitution of Australia 
belongs to the same class and had a like origin ^. 

4. They may arise by the tightening of a looser tie 
which has theretofore existed between various self- 
governing communities. When external dangers or eco- 
nomic interests have led such communities to desire 
a closer union than treaties or federative agreements 
have previously created, such communities may unite 
themselves into one nation, and give that new nation 
a government by means of an instrument which is there- 
after not only to hold them together but to provide for 
their action as a single body. This process of turning a 
League of States (Sfaatcnbiind) into a Federal State 
(Buudcsstaat) is practically certain to create a Rigid Con- 
stitution, for the component communities which are so 
uniting will of course desire that the rights of each shall 
be safeguarded by interposing obstacles and delays to 
any action tending to change the terms of their union, 
and they will therefore place the constitution out of the 
reach of amendment by the ordinary legislature. Cases 
may, however, be imagined in which the component 
communities might be willing to forego this safeguard. 
The Achaean League did so ; and its constitution was 
therefore a flexible one, but then the Achaean League 
can hardly be said to have been a single State in the strict 
sense of the word. It was rather a league, though a close 
league, of States, like the Swiss Confederation in the 
eighteenth century. 

The most familiar instances of this fourth kind of 
origin are the United States of North America, the 
Federation of Mexico (unless it be referred to the second 
class), and the present Swiss Confederation. To this 

1 As to this Constitution see Essay VIII. Unlike the Constitution of Canada, 
it can be amended by the people of Australia without the aid of the Imperial 
Parliament. 



FLEXIBLE AND RIGID CONSTITUTIONS 53 

class may also be referred the very peculiar case of the 
new German Empire, which by two steps, in 1866 and in 
1871, has created itself out of the pre-existing Germanic 
Confederation of 181 5, that Confederation having been 
formed by the decay into fragments of the ancient East 
Prankish or German kingdom, which had, throughout 
the Middle Ages, a Flexible Constitution resembling 
that of the England or France or Castile of the thirteenth 
century. 

X. The Enactment and Amendment of Rigid 
Constitutions. 

Before proceeding to consider the methods by which 
these constitutions may be enacted and changed, it is 
worth while to suggest an explanation of their compara- 
tive recent appearance in history. Documentary consti- 
tutions, i.e. those contained in one or several instruments 
prepared for the purpose, are old. There were many 
of them in the Greek cities ; and efforts were some- 
times made when they were enacted to secure their 
permanence by declaring them tg be unchangeable. But 
in the old days when City States (and sometimes also 
small Rural States) were ruled by Primary Assemblies, 
consisting of all free citizens, there was no authority 
higher than the legislature that could be found to enact 
a constitution, seeing that the legislature consisted of the 
whole body of the citizens. In those days, accordingly, 
when it was decided to give peculiar permanence to some 
political arrangement, so that no subsequent assembly 
of the people should upset it, two expedients were re- 
sorted to. One was to make all the leading men, perhaps 
the whole people, swear solemnly to maintain it, and 
thereby to bring in the deities of the States as co-enact- 
ing or at least protecting and guaranteeing parties. 
Tradition attributed this expedient to Lycurgus at 
Sparta. The other was to provide in the law intended to 
be Fundamental that no proposal to repeal it should ever 



54 FLEXIBLE AND RIGID CONSTITUTIONS 

be entertained, or to declare a heavy penalty on the 
audacious man who should make the proposal. The 
objection to both these expedients was that they de- 
barred any amendment, however desirable, and however 
generally desired. Hence they were in practice little 
.regarded, though the exceptionally pious or supersti- 
Itious Spartans were deemed to be largely deterred from 
governmental changes by the fear of divine disapproval, 
^loreover, the second of the above-named devices or 
barriers could be easily turned by proposing to repeal, 
not the Fundamental law itself, but the prohibition and 
the penalty. These having been repealed — and of course 
the proposal would not be made unless its success were 
pretty well assured — the Fundamental Law would then 
itself be forthwith repealed. It must, however, be added 
that even if the Greek cities had adopted what seems to 
us the obvious plan of requiring a certain majority of 
votes (say two-thirds) for a change in the Fundamental 
Law, or had required if to be passed by four Assemblies 
in succession at intervals of three months, one may doubt 
whether such provisions would have restrained a ma- 
jority in communities which were small, excitable, and 
seldom legally-minded. 

Those who have suggested that the L'^nited Kingdom 
ought to embody certain parts of what we call the 
British Constitution in a Fundamental Statute (or Sta- 
tutes) and to declare such a statute unchangeable by Par- 
liament, or by Parliament acting under its ordinary 
forms, seem to forget that the Act declaring the Funda- 
mental Statute to be Fundamental and unchangeable by 
Parliament would itself be an Act like any other Act, 
and could be repealed by another ordinary statute in 
the ordinary way. All that this contrivance would obtain 
would be to interpose an additional stage in the process 
of abolition or amendment, and to call the attention both 
of the people and the legislature in an emphatic way to 
the fact that a very solemn decision was being reversed. 
Some may think that such a security, if imperfect, would 



FLEXIBLE AND RIGID CONSTITUTIONS 55 

be worth having. The restraint imposed would, however, 
be a moral not a legal one ^. 

A constitution placed out of the power of the legis- 
lature may or may not be susceptible of alteration in 
a legal manner. Sometimes no provision has been made, 
when it was first established, for any change whatever. 
There are instances of this among constitutions granted 
by a monarch to his subjects — such seems to be to-day 
the case in Spain — but in cases of this kind it might pos- 
sibly be held that the grantor implicitly reserved the 
power to vary his grant, as there may not have been 
expressed in the document, and need not be, any bilateral 
obligation. As already observed, the Constitution of the 
present Kingdom of Italy was originally granted to the 
Kingdom of Sardinia by King Charles Albert in 1848; 
and it was for a long time held that the power to change 
it resided in the Crown only. It was extended by a suc- 
cession of popular votes (1859 to 1871) to the rest of 
Italy, and some conceive that this sanction makes at 
least its fundamental parts unchangeable. But the view 
that it is alterable by legislation has prevailed, and it has 
in fact been so altered in some points. The CJiartc Con- 
stitutionnclle granted by Louis XVIII, under which the 
government of France was carried on for many years, 

1 Soon after the above lines were written, the point they deal with came up in 
Parliament in a practical form. In the debate on the Irish Home Rule Bill of 
1886 the question emerged whether Parliament could in constituting a legislature 
for Ireland and assigning to that legislature a certain sphere of action legally de- 
bar itself from recalling its grant or from legislating, upon matters falling within 
that sphere, over the head of the Irish legislature. It was generally agreed by 
lawyers that Parliament could not so limit its own powers, and that no statute it 
might pass could be made unchangeable, or indeed could in any way restrict the 
powers of future Parliaments. 

Upon the general question whether Parliament could so enact any new Consti 
tution for the United Kingdom as to debar itself from subsequently repealing that 
Constitution, it may be suggested, for the consideration of those who relish techni- 
calities, that Parliament could, if so disposed, divest itself of its present authority 
by a sort of suicide, i.e. by repealing all the statutes under which it is now sum- 
moned, and abolishing the common-law right of the Crown to summon it, and 
thereupon causing itself to be forthwith dissolved, having of course first provided 
means for summoning such an assembly, or assemblies, as the new Constitution 
created. There would then be no legal means of summoning another Parliament 
of the old kind, and the new Constitution, whatever it was, would therefore not 
be liable to be altered save in such manner as its own terms provided. 



56 FLEXIBLE AND RIGID CONSTITUTIONS 

was intended to create a sort of parliamentary govern- 
ment, in the first instance by way of gift from the sove- 
reign, but afterwards, under Louis Phihppe, by way of a 
compact, or kind of covenant between monarch and peo- 
ple. The fact that it contained no provisions for altera- 
tion, having apparently been designed to last for ever, 
worked against it ; and the discontents of France may 
have ripened the faster because no constitutional method 
had been provided for appeasing them by changes in the 
machinery of government. Nothing human is immortal ; 
and constitution-makers do well to remember that the 
less they presume on the long life of their work the 
longer it is likely to live. 

The Constitutions of Norway (created in 1814, but 
subsequently altered) and of Greece (created in 1864) 
declare that amendments are to be confined to matters 
not fundamental, but omit to specify the matters falling 
under that description. 

The existing Constitution of France is so far legally 
unalterable that no proposition for abolishing the re- 
publican form of government can be entertained. If it 
be asked. What is a republican form? one may answer 
that if ever the question has to be answered, it will 
be not so much by the z'ia iitris as by the via facti. So 
also the Constitution of the United States is in one 
respect virtually, if not technically, unchangeable. No 
State can without its own consent be deprived of its 
equal representation in the Senate. As no State is ever 
likely to consent to such a change, the change may be 
deemed legally unattainable ; and that any State against 
which it was attempted to enforce a reduction of its re- 
presentation effected by constitutional amendments to 
which it had refused assent would be legally justified 
in considering itself out of the Union. In accordance 
with this American precedent, the new Constitution of 
xA.ustralia declares that no State can have its propor- 
tionate representation in the Parliament, or the mini- 
mum number of its representatives in the House of 
12 



FLEXIBLE AND RIGID CONiSTITUTIONS 57 

Representatives, reduced without the approval of a ma- 
jority of its electors voting on a constitutional amend- 
ment ^. 

Among the methods by which constitutions of the 
Rigid type make, as they now almost invariably do, 
provision for their own amendment, four deserve to be 
enumerated. 

The first is to give the function to the Legislature, 
but under conditions which oblige it to act in a special 
way, different from that by which ordinary statutes are 
passed. There may, for instance, be required a fixed 
C|uorum of members for the consideration of amend- 
ments. Belgium fixes this quorum at two-thirds of each 
House, while also requiring a two-thirds majority of 
each House for a change. Bavaria requires a quorum of 
three-fourths of the members of each House ; Rumania 
one of two-thirds. Or again — and this is a very frequent 
provision, found even when that last-mentioned is want- 
ing — a specified minimum majority of votes may be re- 
quired to carry an amendment. Sometimes this majority 
is three-fourths (as in Greece and Saxony, and in the 
German Empire for a vote of the Federal Council) : more 
frequently it is two-thirds, as in the United States Con- 
gress, in the Mexican Chambers, in Norway, Belgium, 
Rumania, Servia, Bulgaria. Another plan is to require 
a dissolution of the Legislature, so that the amendments 
carried in one session may come vmder the judgement of 
the electors at a general election, and be thereafter 
passed, or rejected, by the newly chosen Legislature. 
This arrangement, often combined with the two-thirds 
majority rule, prevails in Holland, Norway, Rumania, 
Portugal, Iceland, Sweden (where the amendment must 
have been passed in two ordinary successive sessions), 
and several other States, including some of the republics 
of Spanish America. It is in substance an appeal to the 
people as well as to their representatives, and therefore 
adds a further guarantee against hasty change. Finally, 

I See Essay VIII. 



58 FLEXIBLE AXU RIG-ID COXSTITUTIOXS 

the two Houses of the Legislature may sit together as 
a Constituent Assembly. Thus in France (Constitution 
of 1875) when each Chamber has resolved that the Con- 
stitution shall be revised, the two are for the moment 
fused, and proceed to debate and pass amendments. 
Haiti (Constitution of 1899) has a similar plan, which, 
oddly enough, was not borrowed from France, but is as 
old as 1843. Few will suspect France of borrowing from 
Haiti. 

A second plan is to create a special body for the work 
of revision. In the United States, where a vast deal of 
constitution making and revising goes on in the several 
States, such a body is called a Convention, and is usually 
elected when it is desired to re-draft the whole constitu- 
tion, the ultimate approval of the draft being, however, 
almost always reserved for the people 1. In Servia and 
Bulgaria, after amendments have been twice passed by 
the ordinary Legislature, a sort of Special Assembly, 
similarly elected, but twice as large, called the Great 
Skuptschina (in Servia) or Great Sobranje (in Bul- 
garia), receives and finally decides on the proposed 
amendments. 

The republics of Paraguay, Guatemala, Honduras, 
Nicaragua, and Salvador also prescribe Conventions, 
preceded in each case by votes of the Legislature, such 
votes usually requiring a two-thirds majority -. 

A third plan is to refer the new constitution, or the 
amendments proposed (if the revision is partial), to a 
number of minor or local authorities for approval. This 
course is an obviously suitable one in a federation, and 
has accordingly been adopted by the United States, by 
Alexico, by Colombia, by Switzerland, and by the new 

1 But the Constitution of Mississippi of 1890 was enacted by a Convention only 
and never submitted to the people. See as to the United States the author's 
American Cominonivealthy ch. xxxvii. 

2 On the whole subject of the modes of amending constitutions reference may 
be made to the valuable book of my friend M. Charles Borgeaud, Professor at 
Geneva, £iablissemeni ei Revision des Constitutions. See also Dareste, Les Con- 
stitutions Modernes. I owe to these books, and especially to the former, most of 
the facts here given regarding the minor States. 



FLEXIBLE AND RIGID CONSTITUTIONS 59 

Australian Commonwealth, in all of which the com- 
ponent States are consulted, the United States requiring 
a three-fourths majority of States, Switzerland, Austra- 
lia, and Mexico a bare majority. (Switzerland and Aus- 
tralia also require a majority of the citizens generally.) 
It is not, however, invariable in federal countries, for the 
Argentine Confederation entrusts amendment to a Con- 
vention, following on a three-fourths majority vote of 
the Legislature, and Brazil (now a federal country) 
leaves it to the Legislature alone, acting by a two-thirds 
majority in three successive debates. Neither is such 
a plan necessarily confined to a federation, for the exist- 
ing Constitution of Massachusetts was (in 1780) sub- 
mitted to the Towns {i.e. townships) of the State, acting 
as communities, and enacted by the majority of them. 

The fourth plan is to refer amendments to the direct 
vote of the people. Originating in the New England 
States of America, where democracy earliest prevailed, 
this method has spread to Switzerland and to Australia, 
both of which require for alterations in the Funda- 
mental Instrument a majority of the electors voting 
as well as a majority of the States. It prevails now 
not only in these two federations, but also in the several 
States of the United States (with very rare exceptions). 
A bare majority of votes is sufficient, except in Rhode 
Island, where three-fifths are required, and in Indiana 
and Oregon, which require a majority of all the qualified 
voters. The popular vote is also in use in the several 
Cantons of Switzerland. It was repeatedly employed 
in France during the first Revolution, and again (under 
the name of plebiscite) by Louis Napoleon under the 
Second Empire. 

These variations in the mode of amending are in- 
teresting enough to deserve a few comments. 

Broadly speaking, two methods of amendment are 
most in use : that which gives the function to the Legis- 
lature, usually requiring something more than a bare 
majority, and that which gives it to the People, i.e. the 



60 FLEXIBLE A^D RIGID VONISTITVTIONS 

qualified voters. The former of these methods often 
directs a dissolution of the Legislature to precede the 
final vote on amendments, and in this way secures for 
the people a means of delivering their judgement on 
the questions at issue. The latter method is, however, 
a more distinct and emphatic, because a more direct, re- 
cognition of Popular Sovereignty; and it has the advan- 
tage of making the constitution appear to be the work 
of the Nation as a whole, apart from faction, whereas 
in the Legislature it may have been by a party vote that 
the amendments have been carried. Thus it supplies 
the broadest and firmest basis on which a Frame of 
Government can rest. The Convention system is inter- 
mediate between the two others, and has struck no deep 
roots in the Old World, while in the United States it 
has been virtually superseded (as respects enactment) 
by that of the direct Popular Vote. 

Geographically regarded, the method of revision by 
Legislature prevails over Europe and over most of 
Spanish America (being in the latter region sometimes 
combined with the Convention method). The Constitu- 
tion which has most influenced others in Europe and 
become a type for them in this respect is that of Holland 
(1814), because it was the earliest one established after 
the revolutionary period. On the other hand, the United 
States (except the Federal Government) and the demo- 
cratic governments of the Swiss and Australian Federa- 
tions are ruled by the Popular method. The Constitu- 
tion which has set the type of this method is that of 
Massachusetts of 1780. 

As respects facility of change, it is interesting to note 
that the Constitutions which are most quickly and easily 
altered are those of Prussia, which prescribes no safe- 
guard save that of two successive votes separated by an 
interval of at least twenty-one days, and that of France, 
which requires an absolute majority of each House for 
a proposal to revise, and an absolute majority of the two 
Houses sitting together for the carrying of any amend- 



FLEXIBLE AXD KIGID CONSTITUTIONS 61 

ment. The omission of the French Chambers in 1875 to 
submit to the people the constitution then framed, or to 
provide for their sanction to any future amendments, 
was due to the doubt which each party feU of the result 
of an appeal to the nation. The Republicans, though 
able to prevent the establishment of a monarchical con- 
stitution by the Legislature, were not quite sure that 
a republican one would be carried if submitted to a 
popular vote. Thus it has come about that France, 
which went further towards popular sovereignty in 1793 
than any great country has ever done, has lived since 
1875 under an instrument never ratified by the people, 
and which was originally regarded as purely provi- 
sional. 

The Constitution which it is most difficult to change 
is that of the United States. It has in fact never been 
amended since 1809, except thrice between 1865 and 
1870, immediately after and in consequence of the Civil 
War, and then under conditions entirely abnormal, be- 
cause some States were under military duress. 

The tendency of recent years has been towards easier 
and swifter methods than those which were in favour 
during the first half of the nineteenth century : and in 
Germany lawyers and publicists are now disposed to 
minimize the difiference between constitutional changes 
and ordinary statutes, partly perhaps because doctrines 
of popular sovereignty obtain little sympathy from the 
school dominant in the new Empire. That Empire itself 
presents quite peculiar phenomena. So far as the Reichs- 
tag or Federal Assembly is concerned, the constitution 
can be altered by ordinary legislation. But in the Federal 
Council a majority is required large enough to enable 
either Prussia on the one hand or a combination of the 
smaller States on the other to prevent any change. 
This is because the component members of the Federa- 
tion are not republics, as in America, Switzerland, and 
Australia, but are (except the three Hanse cities) monar- 
chies, so that the Upper Federal House represents not 



62 FLEXIBLE ±SD RIGID COySTITLTIOl^iS 

the people but the governments of the several German 
States. 

It is evident that the greater or less stability of any 
given constitution will (other things being equal) be 
determined by the comparative difficulty or ease of carry- 
ing changes in one or other of the above methods. As 
one at least of them, that of committing the function of 
revision to a Constitutional Convention not followed 
by a popular vote, seems to interpose no more, and 
possibly even less, difficulty or delay than does the 
ordinary process of law-making by a two-chambered 
legislature, it may be asked why a constitution change- 
able in such a way should be called Rigid at all. Because 
inasmuch as the method of changing it is different from 
that of passing ordinary statutes, the people are led to 
realize the importance of the occasion, and may be de- 
terred, by the trouble and formalities involved in creating 
the special body, from too lightly or frequently tamper- 
ing with their fundamental laws. It seems a more mo- 
mentous step to create this convention ad Jwc than to 
carry a measure through a legislature which already 
exists, and is daily employed on legislative work. Ex- 
perience has, moreover, shown in the United States, the 
country in which this method has been largely used for 
redrafting, or preparing amendments to, the Constitu- 
tions of the several States^, that a set of men can be 
found for the work of a Convention better than those 
who form the ordinary legislature of the State, and that 
their proceedings when assembled excite more attention 
and evoke more discussion than do those of a State 
Legislature, a body which now receives little respect, 
though perhaps as much as it desen*es. Nowadays, 
however, a draft constitution prepared by a Convention 
is in an American State almost always submitted to the 
people for their approval. 

1 Xo Constitutional Convention has ever been held for revising the Federal 
Constitution of 17S7-9, -which was drafted by a Convention and adopted by the 
thirteen States in succession. 



FLEXIBLE AND RIGID CONSTITUTIONS 63 

The French plan of using the two Houses sitting 
together as a Constituent Convention has a certain in- 
terest for Enghshmen, because the suggestion has been 
made that disputes between their House of Lords and 
House of Commons might be settled by a vote of both 
sitting together, i.e. of the whole of the Great Council 
of the Nation ^ as it sat in the thirteenth century before 
it had formed the habit of debating and voting in two 
Houses. It still meets (but does not debate or vote) 
as one body when the Sovereign, or a Commission re- 
presenting the Sovereign, is present, as happens at the 
beginning and at the end of each session. 

To examine the distinctive qualities of Rigid Consti- 
tutions, as I must now do, is virtually to traverse again 
the same path which was followed in investigating those 
of the Flexible type, for the points in which the latter 
were found deficient are those in which Rigid Constitu- 
tions excel, while the merits of the Flexible indicate the 
faults of the Rigid. The inquiry may, therefore, be brief. 

The two distinctive merits claimed for these Consti- 
tutions are their Definiteness and their Stability. 

XI. The Definiteness of Rigid Constitutions. 

We have seen that the distinctive mark of these Rigid 
Constitutions is their superiority to ordinary statutes. 
They are not the work of the ordinary legislature, and 
therefore cannot be changed by it. They are embodied 
in one written document, or possibly in a few documents, 
so that their provisions are ascertainable without doubt 
by a reference to the documentary "Terms. This feature 
is a legitimate consequence of the importance which be- 
longs to a law placed above all other laws. That which 

1 This plan would have more chance of being favourably entertained were the 
Upper House now, as it was in 1760, less than two hundred strong. As it is now 
nearly as large as the House of Commons, with a majority of about fourteen to 
one belonging to one political party, the party which is in a permanent minority 
might feel that the chances are not equal. 



64 FLEXIBLE AXD RIGID COX^TITUTIOXS 

is to be the sheet-anchor of the State, giving permanent 
shape to its pohtical scheme, cannot be left unwritten, 
and cannot be left to be gathered from a comparison of a 
considerable number of documents which may be con- 
fused or inconsistent. Whether it spring from the agree- 
ment of the citizens or from the free gift of a monarch, 
it must be embodied if possible in one. if not, at any rate 
in only a few solemn instruments. That which is to be a 
fundamental law, limiting the power of the legislature, 
must be set forth in specific and unmistakable terms — 
else how shall it be known when the legislature is infring- 
ing upon or violating it ? A Flexible Constitution, which 
the legislature can modify or destroy at its pleasure, 
though it might conceivably be embodied in one docu- 
ment only, is in fact almost always to be collected from 
at least several documents, and is often, like the Flexible 
Constitution of England, scattered through a multitude 
of statutes and collections of precedents. But the bene- 
fits expected from a Rigid Constitution would be lost 
were its provisions left in similar confusion. 

It is not, however, to be supposed that the citizen of 
a country controlled by a Rigid Constitution w^ho desires 
to understand the full scope and nature of his govern- 
ment will find all that he needs in the document itself. 
No law ever was so written as to anticipate and cover all 
the cases that can possibly arise under it^. There will 
always be omissions, some left intentionally, because the 
points not specifically covered were deemed fitter for the 
legislature to deal with subsequently, some, again, be- 
cause the framers of the constitution could not agree, or 
knew that the enacting authority would not agree, re- 
garding them. Other omissions, unnoticed at the time, 
will be disclosed by the course of events, for questions 
are sure to arise which the imagination or foresight of 
those who prepared the constitution never contemplated. 
There will also be expressions whose meaning is ob- 

1 ' Xeque leges neque senatus consulta ita scribi possunt, ut omnes casus qui 
quandcxjue inciderint comprehendantur.' — lulianus in Dis^st i. 3, 10. 



FLEXIBLE AND RIGID CONSTITUTIONS 65 

scure, and whose application to unforeseen cases will be 
found doubtful when those cases have to be dealt with. 
Here let us distinguish three classes of omissions or 
obscurities: — 

The first class includes matters, passed over in silence 
by the written constitution, which cannot be deemed to 
have been left to be settled either by the legislature or 
by any other organ of government, because they are too 
large or grave, as for instance matters by dealing with 
which the legislature would disturb the balance of the 
constitution and encroach on the province of the Execu- 
tive, or the Judiciary, or (in a Federal Government) of 
the component States. Matters belonging to this class 
can only be dealt with by an amendment of the consti- 
tution itself. 

The second class includes gaps or omissions relating 
to matters not palpably outside the competence of the 
legislature as defined by the constitution. Here the 
proper course will be for the legislature to regulate 
such matters by statute, or else to leave them to be 
settled by the action of the several organs of government 
each acting within its own sphere. These organs may 
by such action create a body of usage which, when well 
settled, will practically supplement the defects of the 
constitution, as statutes will do in like manner, so far as 
they are passed to cover the omitted cases. 

The third class consists not of omissions but of matters 
which are referred to by the constitution, but in terms 
whose meaning is doubtful. Here the question is what 
interpretation is to be given to its words by the authority 
entitled to interpret, that authority being in some coun- 
tries the legislature, in others the judicial tribunals. To 
the subject of Interpretation I shall presently return. 
Meantime, it must be noted that both Legislation and 
Usage in filling up the vacant spaces in the constitution, 
and Interpretation in explaining its application to a 
series of new cases as they arise upon points not ex- 
pressly covered by its words, expand and develop a con- 



66 FLEXIBLE ASD RIGID COySTITUTIOXS 

stitution, and may make it after a long interval of time 
different from what it seemed to be to those who watched 
its infancy. The statutes, usages, and explanations afore- 
said will in fact come to form a sort of fringe to the con- 
stitution, cohering with it, and possessing practically the 
same legal authority as its express words have. And it 
thus may happen that (as in the United States) a large 
mass of parasiticjaw grows up round the document or 
documen^ts"w!iich contain the Constitution. Nevertheless 
there will still remain a distinction between this parasitic 
law and usage and the provisions of the constitution 
itself. The latter stand unchangeable, save by constitu- 
tional amendment. Statutes, on the other hand, can be 
changed by the legislature ; usage may take a new direc- 
tion ; the decisions given interpreting the constitution 
may be recalled or varied by the authority that pro- 
nounced them. All these are in fact Flexible parasites 
growing upon a Rigid stem. Thus it will be seen that the 
apparent definiteness and simplicity of Documentary 
Constitutions may in any given case be largely qualified 
by the growth of a mass of quasi-constitutional matter 
which has to be known before the practical working of 
the constitution can be understood. 

XII. The Stability of Rigid Constitutions. 

The stabilit}^ of a constitution is an object to be much 
desired both because it inspires a sense of security in the 
minds of the citizens, encouraging order, industry and 
thrift, and because it enables experience to be accumu- 
lated whereby the practical working of the constitution 
may be improved. Political institutions are under all 
circumstances difficult to work, and when they are fre- 
quently changed, the nation does not learn how to work 
them properly. Experiment is the soul of progress, but 
experiments must be allowed a certain measure of time. 
The plant will not grow if men frequently uncover the 
roots to see how thev are striking. Constitutions em- 



FLEXIBLE AND RIGID CONi^TITUTIONS 67 

bodied in one legal document and unchangeable by the 
legislature, are intended to be, and would seem likely 
to be, peculiarly durable. Being definite, they do not 
give that opening to small deviations and perversions 
likely to arise from the vagueness of a Flexible or ' un- 
written ' Constitution, or from the probable discre- 
pancies between the different laws and traditions of 
which it consists. They may be battered down, but they 
cannot easily (save by a method to be presently ex- 
amined) be undermined. When an attack is made upon 
them, whether by executive acts violating their provi- 
sions, or by the passing of statutes inconsistent with 
those provisions, such an attack can hardly escape obser- 
vation. It is a plain notice to the defenders of the consti- 
tution to rally and to stir up the people by showing the 
mischief of an insidious change. The principles on which 
the government rests, being set forth in a broad and 
simple form, obtain a hold upon the mind of the com- 
munity, which, if it has been accustomed to give those 
principles a general approval, will be unwilling to see 
them tampered with. Moreover the process prescribed 
for amendment interposes various delays and formalities 
before a change can be carried through, pending which 
the people can reconsider the issues involved, and recede, 
if they think fit, from projects that may have at first 
attracted them. Both in Switzerland and in the States 
of the American Union it has repeatedly happened that 
constitutional amendments prepared and approved by 
the legislature have been rejected by the people, not 
merely because the mass of the people are often more 
conservative than their representatives, or are less ame- 
nable to the pressure of particular ' interests ' or sections 
of opinion, but because fuller discussion revealed objec- 
tions whose weight had not been appreciated when the 
proposal first appeared. In these respects the Rigid 
Constitution has real elements of stability. 

Nevertheless it may be really less stable than it ap- 
pears, for there is in its rigidity an element of danger. 



68 FLEXIBLE AXD RIGID COXSTITUTIOXS 

It has already been noted that a constitution of the 
Flexible type finds safety in the elasticity which enables 
it to be stretched to meet some passing emergency, and 
then to resume its prior shape, and that it may disarm V 
revolution by meeting revolution half-way. This is just 
what the Rigid Constitution cannot do. It is constructed, 
if I may borrow a metaphor from mechanics, like an iron 
railway-bridge, built solidly to resist the greatest amount 
of pressure by wind or water that is likely to impinge 
upon it. If the materials are sound and the workmanship 
good, the bridge resists with apparent ease, and perhaps 
without showing signs of strain or displacement, up to 
the highest degree of pressure provided for. But when 
that degree has been passed, it may break suddenly and 
utterly to pieces, as the old Tay Bridge did under the 
storm of December, 1879. The fact that it is very strong 
and all knit tightly into one fabric, while enabling it to 
stand firm under small oscillations or disturbances, may 
aggravate great ones. For just as the whole bridge 
collapses together, so the Rigid Constitution, which has 
arrested various proposed changes, may be overthrown 
"by a popular tempest which has gathered strength from 
the very fact that such changes were not and under the 
actual conditions of politics could not be made by way 
rof amendment. A\*hen a party grows up clamouring for 
some reforms which can be effected only by changing 
the constitution, or when a question arises for dealing 
Iwith which the constitution provides no means, then, 
lif the constitution cannot be amended in the legal way, 
i'ybecause the legally prescribed majority cannot be ob- 
tained, the discontent that was debarred from any le gal 
outlet may find vent in a revolution or a civil war. /The 
history of the Slavery question in the United States il- 
lustrates this danger on so grand a scale that no other 
illustration is needed. The Constitution of 1787, while 
recognizing the existence of slavery, left sundry ques- 
tions, and in particular that of the extension of slavery 
into new territories and States, unsettled. Thirty years 



FLEXIBLE ASD RIGID CONSTITUTIONS 69 

later these matters became a cause of strife, and after 
another thirty years this strife became so acute as to 
threaten the peace of the country. Both parties claimed 
that the Constitution was on their side. Had there been 
no Constitution embodied in an instrument difficult of 
change, or had it been practicable to amend the Consti- 
tution, so that the majority in Congress could have had, 
at an earlier stage, a free hand in dealing with the ques- 
tion, it is possible — though no one can say that it is 
certain — that the War of Secession might have been 
averted. So much may at any rate be noted that the Con- 
stitution, which was intended to hold the whole nation 
together, failed to do. There might no doubt in any 
case have been armed strife, as there was in England 
under its Flexible Constitution in 1641. But it is at least 
equally probable that the slave-holding party, which saw 
its hold on the government slipping away, hardened its 
heart because it held that it was the true exponent 
of the Constitution, and because the Constitution made 
compromise more difficult than it need have been in a 
country possessing a fully sovereign legislature. 

Two opposing tendencies are always at work in coun- 
tries ruled by these Constitutions, the one of which tends 
to strengthen, the other to weaken them. The first is 
the growth of the respect for the Constitution which 
increasing age brings. The remark is often made that if 
husband and wife do not positively dislike one another, 
and if their respective characters do not change under 
ill-health or misfortune, every year makes them like one 
another better. They may not have been warmly at- 
tached at first, but the memories of past efforts and 
hardships, as well as of past enjoyments, endear them 
more and more to one another, and even if jars and 
bickerings should unhappily recur from time to time, 
the strength of habit renders each necessary to the other, 
and makes that final severance which, at moments of 
exasperation, they may possibly have contemplated with 
equanimity, a severe blow when it arrives. So a nation, 



70 FLEXIBLE AXD RIGID COXSTITUTIOXS 

though not contented with its Constittition, and vexed 
by quarrels over parts of it, may grow fond of it simply 
because it has lived with it, has obtained a measure of 
prosperity under it, has perhaps been wont to flaunt its 
merits before other nations, and to toast it at public 
festivities. The magic of self-love and self-complacency 
turns even its meaner parts to gold, while imaginative 
reverence for the past lends it a higher sanction. This 
is one way in which Time may work. But Time also 
works against it, for Time, in changing the social and 
material condition of a people, makes the old political 
arrangements as they descend from one generation to 
anothera less adequate expression of their political 
needs. VNobody now discusses the old problem of the 
Best Form of Government, because everybody now ad- 
mits that the chief merit of any form is to be found in its 
suitability to the conditions and ideas of those among 
whom it prevails. Now if the conditions of a country 
change, if the balance of power among classes, the 
dominant ideas of reflective men, the distribution of 
wealth, the sources whence wealth flows, the duties ex- 
pected from the administrative departments of govern- 
ment, all become different, while the form and constitu- 
tionally-prescribed methods of government remain un- 
modified, it is clear that flaws in the Constitution will be 
revealed which were previously unseen, and problems 
will arise with which its arrangements cannot cope. 
The remedy is of course to amend the Constitution. 
But that is just what may be impossible, because the 
requisite majority may be unattainable ; and the oppo- 
nents of amendment, entrenched behind the ramparts of 
an elaborate procedure, may succeed in averting changes 
which the safety of the community demands. The pro- 
visions that were meant to give security may now be 
dangerous, because they stand in the way of natural 
i development.'V 

Even whefe no strong party interest is involved it 
may be hard to pass the amendments needed. The his- 



FLEXIBLE AND RIGID CONSTITUTIONS 71 

tory of the United States again supplies a case in point. 
Two defects in its Constitution are admitted by most 
political thinkers. One is the absence of power to estab- 
lish a uniform law of marriage and divorce over the 
whole Union. The other is the method of conducting 
the election of a President, a method which in 1876 
brought the country to the verge of civil war, and may 
fevery four years involve the gravest risks. Yet it has 
been found impossible to procure any amendment on 
either point, because an enormous force of united public 
opinion is needed to ensure the concurrence of two- 
thirds of both Houses of Congress and three-fourths of 
the States. The first of these two changes excites no 
sufficient interest among politicians to make them care 
to deal with it. The second is neglected, because no one 
has a clear view of what should be substituted, and 
neither party feels that it has more to gain than has the 
other by grappling with the problem. 

A historical comparison of the two types as regards 
the smoothness of their working, and the consequent 
tendency of one or other to secure a quiet life to the 
State, yields few profitable results, because the circum- 
stances of dififerent nations are too dissimilar to enable 
close parallels to be drawn, and because much depends 
upon the skill with which the provisions of each particu- 
lar instrument have been drawn and upon the greater or 
less particularity of those provisions. The present Con- 
stitution of France, for instance, is contained in two 
very short and simple documents, which determine only 
the general structure of the government, and are in size 
not one-twentieth of the Federal Constitution of Switzer- 
land. Hence it follows that a far freer play is left to the 
legislature and executive in France than in Switzerland ; 
and that these two authorities have in the former State 
more power of meeting any change in the conditions of 
the country, and also more power of doing harm by 
hasty and unwise action, than is permitted in the latter. 
As Adaptability is the characteristic merit and insecurity | 



72 . FLEXIBLE AM) RIGID CONSTITUTIONS 

the characteristic defect of a Flexible Constitution, so 
the drawback which corresponds to the Durability of 
the Rigid is its smaller capacity for meeting the changes 
and chances of economic, social and political conditions. 
A provision strictly defining the structure of the govern- 
ment may prevent the evolution of a needed organ. A 
prohibition debarring the legislature from passing cer- 
tain kinds of measures may prove unfortunate when 
a measure of that kind would be the proper remedy. 
Every security has its corresponding disadvantage. 

XIII. The Interpretation of Rigid Constitutions. 

A well-drawn Rigid Constitution will confine itself to 
essentials, and leave many details to be filled in subse- 
quently by ordinary legislation and by usage. But (as 
already observed) even the best-drawn instrument is sure 
to have omitted some things which ought to have been 
expressly provided for, to have imposed restrictions 
which will prove inconvenient in practice, to contain 
provisions which turn out to be susceptible of dififerent 
interpretations when cases occur raising a point to which 
the words of those provisions do not seem to be directly 
addressed. When any of these things happen, the autho- 
rities, legislative and executive, who have to work the 
Constitution find themselves in a difficulty. Steps seem 
called for which the Constitution either does not give 
power to do, or forbids to be done, or leaves in such 
doubt as to raise scruples and controversies. The autho- 
rities, or the nation itself, have then three alternative 
courses open to them. The first is to submit to the re- 
strictions which the Constitution imposes, and abandon 
a contemplated course of action, though the public in- 
terest demands it. This is disagreeable, but if the case is 
not urgent, may be the best course, though it tends to the 
disparagement of the Constitution itself. The second 
course is to amend the Constitution : and it is obviously 
the proper one, if it be possible. But it may be practically 
13 



FLEXIBLE AXD lilGlD CON>STITUTIONS 73 

impossible, because the procedure for passing an amend- 
ment may be too slow, the need for action being urgent, 
or because the majority that can be secured for amend- 
ment, even if large, may be smaller than the Constitution 
prescribes. The only remaining expedient is that which 
is euphemistically called Extensive Interpretation, but , -^ ^ 
may really amount to Evasion. Evasion, pernicious as 
it is, may give a slighter shock to public confidence than 
open violation, as some have argued that equivocation 
leaves a man's conscience less impaired for future use 
than does the telling of a downright falsehood. Cases 
occur in which the Executive or the Legislature profess 
to be acting under the Constitution, when in reality 
they are stretching it, or twisting it, i.e. are putting a 
forced construction upon its terms, and afifecting to 
treat that as being lawful under its terms which the 
natural sense of the terms does not justify. The ques- 
tion follows whether such an evasion will be held legal, 
i.e. whether acts done in virtue of such a forced construc- 
tion as aforesaid will be deemed constitutional, and will 
bind the citizens as being legally done. This will evi- 
dently depend on a matter we have not yet considered, 
but one of profound importance, viz. the authority 
in whom is lodged the right of interpreting a Rigid 
Constitution. 

On this point there is a remarkable diversity of theory 
and practice between countries which follow the English 
and countries which follow the Roman law. The English 
attribute the right to the Judiciary. As a constitutional 
instrument is a law, distinguished from other laws only 
by its higher rank, principle suggests that it should, like 
other laws, be interpreted by the legal tribunals, the last 
word resting, as in other matters, with the final Court of 
Appeal. This principle of referring to the Courts all 
1 questions of legal interpretation may be said to be in- 
herent in the English Common Law, and holds the field 
in all countries whose systems are built upon the founda- 
tion of that Common Law. In particular, it holds good 



74 FLEXIBLE AXD RIGID COXSTITUTIOXS 

in the United Kingdom and in the United States. As the 
British Parliament can alter any part of the British 
Constitution at pleasure, the principle is of secondary 
political importance in England, for when any really 
grave question arises on the construction of a constitu- 
tional law it is dealt with by legislation. However, the 
action of the Courts in construing the existing law is 
watched with the keenest interest when questions arise 
which the Legislature refuses to deal with, such, for 
instance, as those that affect the doctrine and discipline 
of the EstabHshed Church. So in the seventeenth cen- 
tury, when constitutional questions were at issue betw^een 
the King and the House of Commons, w^hich it was im- 
possible to settle by statute, because the king would 
have refused consent to bills passed by the Commons, 
the power of the Judges to declare the rules of the 
ancient Constitution was of great significance. In the 
United States, where Congress cannot alter the Con- 
stitution, the function of the Judiciary to interpret the 
will of the people as set forth in the Constitution has 
attained its highest development. The framers of that 
Constitution perhaps scarcely realized what the effect 
of their arrangements would be. More than ten years 
passed before any case raised the point; and when the 
Supreme Court declared that an Act of Congress might 
be invalid because in excess of the power granted by 
the Constitution, some surprise and more anger were 
expressed. The reasoning on which the Court proceeded 
was, however, plainly sound, and the right was therefore 
soon admitted. Canada and Australia have followed the 
English doctrine, so the Bench has a weighty function 
under the constitutions of both those Federations. 

On the European Continent a different view prevails, 
and the Legislature is held to be the judge of its own 
powers under the Constitution, so that no Court of law 
may question the authority of a statute passed in due 
form. Such is the rule in Switzerland. There, as in 
most parts of the European Continent, the separation of 



FLEXIBLE AND RIGID CONSTITUTIONS 75 

the Judiciary from the other two powers has been less 
complete than in England, and the deference to what 
Englishmen and Americans call the Rule of Law less 
profound. The control over governmental action which 
the right of interpretation implies seems to the Swiss 
too great, and too political in its nature, to be fit for a 
legal tribunal. It is therefore vested in the National 
Assembly, which when a question is raised as to the con- 
stitutionality of a Federal Statute or Executive Act, or 
as to the transgression of the Federal Constitution by a 
Cantonal Statute, is recognized as the authority com- 
petent to decide. The same doctrine seems to prevail in 
the German Empire, though the point is there not quite 
free from doubt, and also in the Austrian Monarchy, in 
France, and in Belgium. In the Orange Free State, liv- 
ing under Roman-Dutch law, the Bench, basing itself on 
American precedents, claimed the right of authoritative 
interpretation, but the Legislature hesitated to admit it. 

American lawyers conceive that the strength and value 
of a Rigid Constitution are greatly reduced when the 
Legislature becomes the judge of its own powers, en- 
titled after passing a statute which really transgresses 
the Constitution to declare that the Constitution has in 
fact not been transgressed. The Swiss, however, deem 
the disadvantages of the Amerfcan method still more 
serious, for they hold that it gives the last word to the 
judges, persons not chosen for or fitted for such a func- 
tion, and they declare that in point of fact public opinion 
and the traditions of their government prevent the power 
vested in their National Assembly from being abused. 
And it must be added that the Americans have so far 
felt the difficulty which the Swiss dwell on, that the 
Supreme Court has refused to pronounce upon the ac- 
tion of Congress in ' purely political cases,' i. c. cases 
where the arguments used to prove or disprove the con- 
formity to the Constitution of the action taken by Con- 
gress are of a political nature. 

Returning to the question of legislative action alleged 



76 FLEXIBLE ATslD RIGID CONSTITUTIONS 

to transgress the Constitution, it is plain that if the 
Legislature be, as in Switzerland, the arbiter of its own 
powers, so that the validity of its acts cannot be ques- 
tioned in a court of law, there is no further difficulty. But 
where that validity can be challenged, as in the United 
States, it might be supposed that every unconstitutional 
statute will be held null, and that thus any such stretch- 
ing or twisting of the Constitution as has been referred 
to will be arrested. But experience has shown that where 
public opinion sets strongly in favour of the line of con- 
duct which the Legislature has followed in stretching 
the Constitution, the Courts are themselves affected by 
that opinion, and go as far as their legal conscience and 
the general sense of the legal profession permit — pos- 
sibly sometimes even a little farther — in holding valid 
what the Legislature has done. This occurs most fre- 
quently where new problems of an administrative kind 
present themselves. The Courts recognize, in fact, that 
' principle of development ' which is potent in politics as 
well as in theology. Human affairs being what they are, 
there must be a loophole for expansion or extension in 
some part of every scheme of government ; and if the 
Constitution is Rigid, Flexibility must be supplied from 
the minds of the Judges. Instances of this kind have 
occurred in the UniteS States, as when some twenty 
years ago the Supreme Court recognized a power in a 
State Legislature to deal with railway companies not 
consistent with the opinions formerly enounced by the 
Court, though they disclaimed the intention of over- 
ruling those opinions ^. 

1 A still more remarkable instance has been furnished, while these pages are 
passing through the press (June, igoi), by the decisions of the Supreme Court of 
the United States in the group of cases which arose out of questions relating to 
the applicability of the Federal Constitution to the island of Puerto Rico, recently 
ceded by Spain to the United States. The Court had to deal with a constitutional 
question raising large issues of national policy regarding the application of the 
Federal Constitution to territories acquired by conquest and treaty: and its judge- 
ments in these cases (given in every case by majorities only) have expanded the 
Constitution, i.e. have declared it to have a meaning which may well be its true 
meaning, but which was not previously ascertained, and certainly by many lawyers 
not admitted, to be its true meaning. 



FLEXIBLE AND RIGID CONSTITUTIONS 77 

Does not a danger lurk in this? May not a majority 
/dn the Legislature, if and when they have secured the 
concurrence, honest or dishonest, of the Judiciary, prac- 
tically disregard the Constitution ? May not the Execu- 
tive conspire with them to manipulate places on the 
highest Court of Appeal, so as to procure from it such 
declarations of the meaning of the Constitution as the 
conspiring parties desire? May not the Constitution 
thus be slowly nibbled away? Certainly. Such things 
may happen. It is only public opinion and established 
tradition that will avail to prevent them. But it is upon 
public opinion, moulded by tradition, that all free govern- 
ments must in the last resort rely. 

XIV. Democracies and Rigid Constitutions. 

The mention of traditions, that is to say of the mental 
and moral habits of judgement which a nation has 
formed, and which guide its political life, as the habits of 
each one of us guide his individual life, suggests an in- 
quiry as to the effect of Documentary Constitutions on 
the ideas and habits of those who live under them. I will 
not venture on broad generalizations, because it is hard 
to know how much should be assigned to the racial ten- 
dencies of a nation, how much to the circumstances of its 
history, how much to its institutions. But the cases of 
Switzerland and the United States seem to show that the 
tendency of these instruments is to foster a conservative 
temper. The nation feels a sense of repose in the settled 
and permanent form which it has given to its govern- 
ment. It is not alarmed by the struggles of party in the 
legislature, because aware that that body cannot disturb 
the fundamental institutions. Accordingly it will often, 
contracting a dislike to change, negative the amendments 
which the legislature submits to it. This happens in 
Switzerland, as already observed ; and the people of the 
United States, though liable to sudden and violent waves 
of political opinion, show so little disposition to innovate 



\ 



78 FLEXIBLE AXD RIGID COXSTITUTIOXS 

that Congress has not proposed any amendments to the 
State Legislatures since 1870 ^. I may be reminded that 
the Constitutions of the several States of the Union are 
frequently recast or amended in detail. This is true, but 
the cause lies not so much in a restless changefulness as 
in the low opinion entertained of the State Legislatures. 
The distrust felt for these bodies induces the people to 
take a large part of what is really ordinary legislation 
out of their hands, and to enact themselves, in a form of a 
Constitution, the laws they wish. State Constitutions 
now contain many regulations on matters of detail, and 
have thus, in most States, ceased to be considered funda- 
mental instruments of government. To revise or amend 
them has become merely a convenient method of direct 
popular legislation, similar to the Swiss Popular Initia- 
tive and Referendum. But the fundamental parts of 
these instruments are but slightly changed. 

In estimating the influence of Flexible Constitutions 
in forming the political character of a nation, in stimu- 
lating its intelligence and training its judgement, it was 
remarked that only the governing class, a very small 
part of the nation even in democratic countries, are di- 
rectly affected. This is less true of a Rigid Constitution. 
AMiile a Flexible Constitution like the Roman or English 
requires much knowledge, tact and courage to work it, 
and develops these qualities in those who bear a part in 
the working of it, as legislators or officials or magis- 
trates, a Rigid Constitution tends rather to elicit in- 
genuity, subtlety and logical acumen among the corre- 
sponding class of persons. It is'apt to give a legal cast 
to most questions, and sets a high, perhaps too high, 
premium on legal knowledge and legal capacity. But it 
goes further. It affects a much larger part of the com- 
munity than the Flexible Constitution does. Few even 
of the governing class can be expected to understand the 
latter. The average Roman voter in the com'itia m the 

1 Something must, however, be allowed for the provisions which require largfe 
majorities for any amendment of the Constitution. 



FLEXIBLE AND RIGID CONSTITUTIONS 79 

days of Cicero, like the average English voter at the 
polls to-day, probably knew but little about the legal 
structure of the government he lived under. But the 
average Swiss voter, like the average native American 
voter (for the recent immigrant is a different sort of 
creature), understands his government, can explain it, 
and has received a great deal of education from it. 
Talk to a Swiss peasant in Solothurn or Glarus, and 
you will be astonished at his mastery of principles as 
well as his knowledge of details. Very likely he has 
a copy of the Federal Constitution at home. He has 
almost certainly learnt it at school. It disciplines his 
mind much as the Shorter Catechism trained the Presby- 
terian peasantry of Scotland. As there is no mystery 
about a scheme of government so set forth, it may be 
thought that he will have little reverence for that 
which he comprehends. It is, however, his own. He 
feels himself a part of the Government, and seems 
to be usually imbued with a respect even for the letter 
of the instrument, a wholesome feeling, which helps 
to form that law-abiding spirit which a democracy 
needs. 

A documentary Constitution appears to the people as 
the immediate outcome of their power, the visible image 
of their sovereignty. It is commended by a simplicity/ 
which contrasts favourably with the obscure technicali-' 
ties of an old common law Constitution. The taste of 
the multitude, and especially of that class which out- 
numbers all other classes, the thinly-educated persons 
whose book-knowledge is drawn from dry manuals in 
mechanically-taught elementary schools, and who in after 
life read nothing but newspapers, or penny weeklies, or 
cheap novels — the taste of this class, and that not merely 
in Europe but perhaps even more in the new countries, 
such as Western America and the British Colonies, is 
a taste for ideas level with their comprehension, senti- 
ments which need no subtlety to be appreciated, pro- 
positions which can be expressed in unmistakable posi- 



80 FLEXIBLE AND RIGID CONSTITUTIONS 

tives and negatives. Thus the democratic man (as Plato 
would call him) is pleased to read and know his Con- 
stitution for himself. The more plain and straight- 1 
forward it is the better, for so he will not need to ask i 
explanations from any one more skilled. And a good a Jj^ 
reason for this love of plainness and directness may be 
found in the fact that the twilight of the older Consti- y/ 
tutions permitted abuses of executive power against ^ 
which the express enactments of a Rigid Constitution 
protect the people. Magna Charta, the Bill of Rights, f 
the Twelve Tables, were all fragments, or rather instal- 
ments, of such a Constitution, rightly dear to the com- 
mons, for they represented an advance towards liberty 
and order i. 

The theory of democracy assumes that the multitude 
are both competent and interested ; competent to under- 
stand the structure of their government and their own 
functions and duties as ultimately sovereign in it, in- 
terested as valuing those functions, and alive to the 
responsibility of those duties. A Constitution set out 
in black and white, contained in a concise document ' 
which can be expounded and remembered more easily ^ 
than a Constitution growing out of a long series of '^^ 
controversies and compromises, seems specially fitted 
for a country where the multitude is called to rule. Only 
memory and common sense are needed to master it. It 
can la}^ down general principles in a series of broad, 
plain, authoritative propositions, while in the case of the 
' historical Constitution ' they have to be gathered from 
various sources, and expressed, if they are to be ex- 
pressed correctly, in a guarded and qualified form. Now 
the average man, if intelligent enough to comprehend 
politics at all, likes general principles. Even if, as some 
think, he overvalues them, yet his capacity for absorbing 
them gives him a sort of comprehension of his govern- 

I The ' People's Charter ' of 1848 was called for as another such onward step. 
Its Six Points were to be the basis of a democratic reconstruction of the govera 
ment. 



FLEXIBLE AXD RIGID CONSTITUTIONS 



81 



ment and attachment to it which are solid advantages in 
a large democracy. 

Constitutions of this type have usually arisen when 
the mass of the people were anxious to secure their 
rTghts against the invasions of power, and to construct 
a frame of government in which their voices should be 
sure to^ preyail. They furnish a valuable protection for 
minorities which, if not liable to be overborne by the 
tyranny of the mass, are at any rate liable to be dis- 
heartened into silence by superior numbers, and so need 
all the protection which legal safeguards can give them. 
Thus they have generally been accounted as institutions 
characteristic of democracy, though the cases of Ger- 
many and Japan show that this is not necessarily true. 

A change of view has, however, become noticeable 
within the last few years. In the new democracies of 
the United States and the British self-governing Colo- 
nies — and the same thing is true of popularly governed 
countries in Europe — the multitude no longer fears 
abuses of power by its rulers. It is itself the ruler, 
accustomed to be coaxed and flattered. It feels no 
need for the protection which Rigid Constitutions give. 
And in the United States it chafes under those restric- 
tions on legislative power, embodied in the Federal Con- 
stitution or State Constitution (as the case may be), 
which have surrounded the rights of property and the 
obligation of subsisting contracts with safeguards ob- 
noxious, not only to the party called Socialist, but to 
reformers of other types. As these safeguards are some- 
times thought to prevent the application of needed 
remedies and to secure impunity for abuses which have 
become entrenched behind them, the aforesaid consti- 
tutional provisions have incurred criticism and censure 
from various sections, and many attempts have been 
made by State legislatures, acting at the bidding of those 
who profess to control the votes of working men, to dis- 
regard or evade the restrictions. These attempts are 
usually defeated by the action of the Courts, whence it 



82 FLEXIBLE A^D RIGID COXlSTITUTIOXS 

happens that both the Federal Constitution and the func- 
tions of the Judiciary are often attacked in the country 
which was so extravagantly proud of both institutions 
half a century ago. This strife between the Bench as the 
defender of old-fashioned doctrines (embodied in the 
provisions of a Rigid Constitution (Federal or State)) 
and a State Legislature acting at the bidding of a large 
section of the voters is a remarkable feature of con- 
temporary America. 

The significance of this change in the tendency of 
opinion is enhanced when we find that a similar change 
has been operative in the opposite camp. The very con- 
siderations which have made odious to some American 
reformers those restrictions on popular powex, behind 
which the great corporations and the so-called "' Trusts ' 
(and capitalistic interests generally) have entrenched 
themselves, have led not a few in England to applaud the 
same restrictions as invaluable safeguards to property. 
Realizing, a little late in the day, that political power has 
in England passed from the Few to the Many, fearing 
the use which the ]\Iany may make of it, and alarmed by 
the precedents which land legislation in Ireland has set, 
they are anxious to tie down the British legislature, while 
yet there is time, by provisions which shall prevent in- 
terference with a man's control over what he calls his 
own, shall restrict the taking of private property for pub- 
lic uses, shall secure complete liberty of contracting, 
and forbid interference with contracts already made. 
Others in England, in their desire to save political insti- 
tutions which they think in danger, propose to arrest 
any sudden popular action by placing those institutions 
in a class by themselves, out of the reach of the regular 
action of Parliament. In other words, the establishment 
in Britain of a species of Rigid Constitution has begun m 
to be advocated, and advocated by the persons least in-/ 
clined to trust democracy. ' Imagine a country ' — so 
they argue — ' with immense accumulated wealth, and a 
great inequality of fortunes, a country which rules a vast 



^-■7^7/ 



FLEXIBLE AND RIGID CONISTITUTIONS 83 

and distant Empire, a country wliich depends for her 
prosperity upon manufactures liable to be injured by 
bad legislation, and upon a commerce liable to be im- 
perilled by unskilful diplomacy, and suppose that such a 
country should admit to power a great mass of new and 
untrained voters, to whose cupidity demagogues will, 
appeal, and upon whose ignorance charlatans will prac- 
tise. Will not such a country need something better fori 
her security than a complicated and delicately-poised 
Constitution resting largely on mere tradition, a Consti- 
tution which can at any moment be fundamentally altered 
by a majority, acting in a revolutionary transient spirit, 
yet in a perfectly legal way? Ought not such a country 
to place at least the foundations of her system and the 
vital principles of her government out of the reach of an 
irresponsible parliamentary majority, making the pro- 
cedure for altering them so slow and so difficult that 
there will be time for the conservative forces to rally to 
their defence before any fatal changes can be carried 
through ? ' 

I refer to these arguments, which were frequently 
heard in England during some years after the extension 
of the suffrage in 1884 1, with no intention of discuss- 
ing their soundness, for that belongs to politics, but 
solely for the sake of illustrating how different are the 
aspects which the same institution may come to wear. 
A century ago revolutionists were the apostles, con- \\ i 
servatives the enemies, of Rigid Constitutions. Even 
forty years ago it was the Flexibility of the historical 
British Constitution that was its glory in the eyes of 
admirers of the British system, its Rigidity that was the 
glory of the American Constitution in the eyes of fervent 
democrats. 

' They are much less heard now (igoo), partly because the public mind is oc- 
cupied with matters of a different order, partly because the political party which 
professes to be opposed to innovation has latterly commanded a large majority in 
the British Legislature. 



84 FLEXIBLE AXD RIGID CONSTITUTIONS 

XV. The Future of the Flexible and Rigid Types. 

A few concluding reflections may be devoted to the 
probable future of the two types that have been occu- 
pying our minds. Are both likely to survive? or if 
not, which of the two will prevail and outlast the other ? 

Two reasons suggest themselves for predicting the 
prevalence of the Rigid type. One is that no new Flex- 
ible Constitutions have been born into the world for 
many years past, unless we refer to this class those of 
some of the British self-governing colonies ^. The other 
is that no country now possessing a Rigid Constitution 
seems likely to change it for a Flexible one. The foot- 
steps are all the other way. Flexible Constitutions have 
been turned into Rigid ones. Xo Rigid one has become 
Flexible -. Even those who complain of the undue con- 
servatism of the American Constitution do not propose 
to abolish that Constitution altogether, nor to place 
it at the mercy of Congress, but merely to expunge parts 
of it, though no doubt parts which (such as the powers 
of the Judiciary) have been vital to its working. 

Against these two arguments may be set the fact that 
popular power has in most countries made great ad- 
vances, and does not need the protection of an instru- 
ment controlling the legislature and the executive, which 
are already only too eager to bend to every breeze of 
popular opinion. If we lived in a time of small States, as 
the ancients did, the people would themselves legislate in 
primary assemblies. Why then, it may be asked, should 
they care to limit the powers of legislatures which are 
completely at their bidding? The old reasons for hold- 
ing legislatures and executives in check have disap- 
peared. Why should the people, safe and self-confident, 
impose a check on themselves? In this there may be 

1 The British self-governing Colonies (except the two great federations, see 
ante, pp. i68-g) have constitutions -n-hich may be changed in all or nearly all 
points by their respective legislatures, but they are not independent States, and 
the power of the legislatures to alter the constitutions is therefore not complete. 

2 The Constitution of Italy, already referred to, is scarcely an exception. 



FLEXIBLE AND RIGID CONSTITUTIONS 85 

some truth. But it must be remembered that since 
modern States are larger than those of former times, 
and tend to grow larger by the absorption of the small 
ones, legislatures are necessary, for business could not 
be carried on by primary popular assemblies, even with 
the aid of ' plebiscites.' Now legislatures are nowhere 
rising in the respect and confidence of the people, and it 
is therefore improbable that any nation which has ai 
documentary Constitution, holding its legislature in sub- J 
jection, will abolish it for the benefit of the legislature, 
although it may wish to do more and more of its legisla- 
tion by the direct action of the people, as it does in 
Switzerland and in some of the States of the American 
Union. On the whole, therefore, it seems probable that 
Rigid Constitutions will survive in countries where they . 
already exist. 

Two other questions remain. Will existing Flexible 
Constitutions remain? Are such new States as may 
arise likely to adopt Constitutions of the Rigid or of the 
Flexible type? 

An inquiry whether countries which, like Hungary 
and Britain, now live under ancient Flexible Constitu- 
tions will exchange them for new documentary ones 
would resolve itself into a general study of the political 
prospects of those countries. All that can be said, apart 
from such a study, is that our age shows no such general 
tendency to change in this respect as did the revolu- 
tionary and post-revolutionary era of the first sixty 
years of the nineteenth century. Still, a few lines may 
be given to considering whether any such alteration of 
form is likely to pass on the Constitution which has long 
had the unquestioned pre-eminence in age and honour, 
that, namely, of the United Kingdom, which is really 
the ancient Constitution of England so expanded as to 
include Scotland and Ireland. 

So far as internal causes and forces are concerned, 
this seems improbable. The people are not likely, de- 
spite the alarms felt and the advice tendered by the 



86 FLEXIBLE AND RIGID C0NSTITUTI0N8 

uneasy persons to whom reference has already been 
made, to part with the free play and elastic power of 
their historical Cabinet and Parliamentary system. Eng- 
land has never yet made any constitutional change either 
on grounds of theory or from a fear of evils that might 
arise in the future. All the modifications of the frame of 
government have been gradual, and induced by actually 
urgent needs. 

But there is another set of causes and forces at work 
which may, as some think, afifect the question. It has 
already been noted that Rigid Constitutions have arisen 
where States originally independent or semi-indepen- 
dent have formed Confederations. These States, finding 
the kind of connexion which treaties had created insuffi- 
cient for their needs, have united themselves into one 
Federal State, and expressed their new and closer rela- 
tion in the form of a documentary Constitution. Such a 
Constitution has invariably been raised above the legis- 
lature it was creating, because the States which were 
uniting wished to guard jealously such autonomy as they 
respectively retained, and would not leave those rights 
at the mercy of the legislature. This happened in the 
United States in 1787-9, in Switzerland after the fall of 
Napoleon, in Germany when the North German Con- 
federation and German Empire were created in 1866 
and 1870-71. It has happened also in Canada and in 
Australia. 

Two proposals of a federalizing nature have recently 
been made regarding the United Kingdom, one to split 
it up into a Federation of four States, the other to make 
it a member of a large Federation. Neither seems 
likely to be carried out at present, but both are worth 
mentioning, because they illustrate the occasions on 
which, and methods by which, constitutions may be 
transformed. The United Kingdom stands to its self- 
governing Colonies in what is practically a permanent 
alliance as regards all foreign relations, these relations 
being managed by the mother country, with complete 



FLEXIBLE AND RIGID CONSTITUTIONS 87 

local legislative and administrative autonomy both for 
each Colony and for the mother country i. Many think 
that this alUance is not a satisfactory, and cannot weW 
be a permanent, form of connexion, because at present 
almost the whole burden — and it is a heavy one — of 
naval and military defence falls upon Britain, while the 
Colonies have no share in the control of foreign rela- 
tions, and may find themselves engaged in a war, or 
bound by a treaty, regarding which they have not been 
consulted. Thus the idea has grown up that some sort 
of confederation ought to be established, in which there 
would be a Federal Assembly, containing representa- 
tives of the (at present seven) component States ^, and 
controlling those matters, such as foreign relations and 
a system of military and naval armaments, which would 
be common to the whole body. If this idea were ever 
to take practical shape, it would probably be carried out 
by a statute establishing a new Constitution for the de- 
sired Confederation, and creating the Federal Assembly. 
Such a statute would be passed by the Parliament of 
the United Kingdom, and (being expressed to be opera- 
tive over the whole Empire) would have full legal efifect 
for the Colonies as well as for the mother country. Now 
if such a statute assigned to the Federal Assembly cer- 
tain specified matters, as for instance the control of 
imperial defence and expenditure or (let us say) legisla- 
tion regarding merchant shipping and copyright, taking 
them away from the present and future British Parlia- 
ment as well as from the parliaments of the several 
Colonies, and therewith debarring the British Parlia- 
ment from recalling or varying the grant except by the 

1 This autonomy is, however, not legally complete as regards the Colonies, for 
the mother country may, though she rarely does, disallow colonial legislation. In 
Canada the Dominion Legislature cannot affect the rights of the several Pro- 
vinces, the power to do so remaining with the Imperial Parliament which passed 
the Confederation Act of 1867. So too under the Constitution of the Australian 
Commonwealth the rights of each colony are protected by the instrument of 
federation. 

^ Viz. the United Kingdom, the two great Colonial Federations (Canada and 
Australia), and four comparatively small self-governing Colonies, viz. New Zea- 
land, Cape Colony, Natal, and Newfoundland. 



88 FLEXIBLE AyD RIGID COXSTITVTIONS 

consent of the several Colonies (or perhaps of the Fede- 
ral Assembly itself), it is clear that the now unlimited 
powers of the British Parliament would have been re- 
duced. A part of the future British Constitution would 
have been placed beyond its control: and to that extent 
the British Constitution would have ceased to be a Flex- 
ible one within the terms of the definition already given i. 
Parliament would not be fully sovereign; and if either the 
British or a Colonial Parlianaent passed laws inconsist- 
ent with statutes passed by the Federal Assembly in 
matters assigned to the latter, the Courts would have 
to hold the transgressing laws invalid. 

Doubtless, if such a Federal Constitution were estab- 
lished, a Supreme Court of Appeal on which some colo- 
nial judges should sit would be thought essential to it, 
and questions arising under the Federation Act (as to the 
extent of the powers of the Federal Assembly and other- 
wise) would go before it, sometimes in the first instance, 
sometimes by way of appeal from inferior Courts. 

The other proposal is to turn the United Kingdom 
itself into a Federation by erecting England, Scotland, 
Ireland, and Wales into four States, each with a local 
legislature and ministry controlling local affairs, while re- 
taining the Imperial Parliament as a Central or Federal 
Legislature for such common affairs as belong in the 
United States to Congress, and in Canada to the Domi- 
nion Parliament, and in Australia to the Commonwealth 
Parliament. If such a scheme provided, as it probably 
would provide, for an exclusive assignment to the local 
legislatures of local affairs, so as to debar the Imperial 
Parliament from interfering therewith, it would destroy 
the present Flexible British Constitution and substitute 

1 It may of course be observed (see p. 175, ante) that the British Parliament, 
•while it continues to be elected as now, maybe unable to divest itself of its general 
power of legislating for the whole Empire, and might therefore repeal the Act by 
which it had resigned certain matters to the Federal Assembly and resume them 
for itself. This is one of those apices iuris of which the Romans say non sunt 
iura ; and in point of fact no Parliament can be supposed capable of the breach 
of faith which such a repeal would involve. The supposed legal difificulty might- 
however, be avoided by some such expedient as that previously suggested. 

14 



FLEXIBLE AND RIGID CONSTITUTIONS 89 

a Rigid one for it. Care would have to be taken to use 
proper legal means of extinguishing the general sove- 
reign authority of the present Parliament, as for instance 
by directing the elections for the new Federal Legisla- 
ture to be held in such a way as to efifect a breach of con- 
tinuity between it and the old Imperial Parliament, so 
that the latter should absolutely cease and determine 
when the new Constitution came into force. Upon this • 
scheme also it would be for the Courts of Law to deter- ^ 
mine whether in any given case either the Federal or one , 
of the Local Legislatures had exceeded its powers. 

Some persons have proposed to combine both these 
proposals so as to make the four parts of the United 
Kingdom each return members, along with the Colonies, 
to a Pan-Britannic Federal Legislature, and to place 
the local legislatures of Scotland, for instance, or Wales, 
in a line with those of the Australian Commonwealth or 
New Zealand. On this plan also the British Constitu- 
tion would become a Rigid one. 

The difficulties, both legal and practical, with which 
these proposals, taken either separately or in conjunc- 
tion, are surrounded, are greater than those who advo- 
cate them have as yet generally perceived. 

XVI. Are New Constitutions Likely to Arise? 

The remaining question, also somewhat speculative, 
relates to the prospects the future holds out to us of 
seeing new States with new Constitutions arise. 

New States may arise in one of two ways, either by 
their establishment in new countries where settled and 
civilized government has been hitherto unknown, or by 
the breaking up of existing States into smaller ones, 
fragments of the old. 

The opportunities for the former process have now 
been sadly curtailed through the recent appropriation 
by a few great civilized States of some two-thirds of the 
surface of the globe outside Europe. North America is 



90 FLEXIBLE AXB RIGID COXSTITUTIOXS 

in the hands of three such States. Central and South 
America, though the States are all weak and most of 
them small in population, are so far occupied that no 
space is left. The last chance disappeared when the 
Argentine Republic asserted a claim to Patagonia, where 
it would have been better that some North European 
race should have developed a new colony, as the Welsh 
settlers were doing on a small scale. Australia is occu- 
pied. Asia, excluding China and Japan in the East, and 
the two dying j\Iusulman powers in the West, is virtu- 
ally partitioned between Britain and Russia, with France 
holding a bit of the south-east corner. So Africa has 
now been (with trifling exceptions) divided between five 
European Powers (Portugal, England, France, Ger- 
many, Italy). Thus there is hardly a spot of earth left 
on which a new independent commimity can establish 
itself, as the Greelcs founded a multitude of new com- 
monwealths in the eighth and seventh centuries b. c, and 
as the Teutonic invaders founded kingdoms during the 
dissolution of the Roman Empire. 

If we turn to the possibilities of new States arising 
from the ruins of existing ones, whether by revolt or by 
peaceful separation, the prospect is not much more en- 
couraging. There is indeed Turkey. Five out of the 
six new States that have arisen in Europe during 
this century have been carved out of the territories 
she claimed — viz. Greece, Rumania, Servia, Bulgaria, 
Montenegro : and there is material for one or two more 
in Europe and possibly for one or two in Asia, though it 
is more probable that both the Asiatic and European 
dominions of the Sultan will be partitioned among exist- 
ing States than that new ones will spring out of them. 
The ill-compacted fabric of the Austro-Hungarian mon- 
archy may fall to pieces. Parts of the Asiatic dominions 
of Russia may possibly (though in a comparatively dis- 
tant future) become independent of the old Muscovite 
motherland, and the less civilized among the republics 
of Central and South America may be broken into parts 



FLEXIBLE AND RIGID CONSTITUTIONS 91 

or combined into new States, though the saying ' plus 
cela change, phis c'est la meme chose ' is even more true 
of those countries than of that to which it was originally 
applied, and gives little hope of interesting novelties. 
But on the whole the tendency of modern times is rather 
towards the aggregation of small States than towards 
the division of large ones. Commerce and improved 
facilities of communication are factors of constantly in- 
creasing importance which work in this direction, and 
this general tendency for the larger States to absorb the 
smaller forbids us to expect the rise, within the next 
few generations, of more than a few new Constitutions 
which will provide matter for study to the historian or 
lawyer of the future. 

What type of Constitution will these new States, what- 
ever they be and whenever they come, be disposed to 
prefer ? Upon this point it is relevant to observe that ' , ^ 
all the new States that have appeared since 1850 have^ 
adopted Rigid Constrtutions, with the solitary exception' 
of Montenegro, which has no Constitution at all, but 
lives under the paternal autocracy of the temporal ruler 
who has succeeded the ancient ecclesiastical Vladika^. 
Each of them, on beginning its independent life, has felt 
the need of setting out the lines of its government in a 
formal instrument which it has consecrated as funda- 
mental by placing it above ordinary legislation. Similar 
conditions are likely to surround the birth of any new 
States, similar motives to influence those who tend their 
infancy. The only cases in which a Flexible Constitution 
is likely to arise would be the division of a country hav- 
ing such a Constitution into two or more fragments, 
each of which should cleave to the accustomed system ; 
or the revolt of a people or community among whom, as 
they grow into a State, usages of government that had 
naturally sprung up might, when independence had been 
established, continue to be observed and so ripen into a 
Constitution. The chance that either of these cases will 

1 As to Italy, however, see above, pp. 171 and 176. 



92 FLEXIBLE AXD RIGID CONSTITUTIONS 

present itself is not very great. Xew States will more 
probably adopt documentary Constitutions, as did the 
insurgent colonies of England after 1776 and of Spain 
after 181 1, and as the Christians of South-Eastern 
Europe did when they had rid themselves of the Turk. 
Upon the whole, therefore, it would seem that the future 
is rather with Rigid Constitutions than with those of the 
Flexible type. 

It is hardly necessary to close these speculations by 
adding the warning that all prophecies in politics musti 
be highly conjectural. Circumstances change, opinion ^ 
changes ; knowledge increases, though the power of 
using it wisely may not increase ^. 

The subtlety of nature, and especially the intricacy of 
the relations she develops between things that originally 
seemed to lie wide apart, far surpasses the calculating 
or predicting wit of man. Accordingly many things, 
both in the political arrangements of the world and in 
the beliefs of mankind, which now seem permanent may 
prove transitory. Democracy itself, though most people 
treat it as a thing likely to grow stronger and advance 
further, may suffer an eclipse. Human nature no doubt 
remains. But human nature has clothed itself in the 
vesture of every sort of institution, and may change its 
fashions as freely in the future as it has done in the past. 

^'XnavB' 6 uttKpbs Karoptfl/xTjTOS XP°''OS 
<^vet T* dSrjka koL <^areVTa KpvTrreTat. 

Soph. Ajax, 646. 



NOTE TO ESSAY III 

CONSTITUTIONAL AND OTHER GOVERN- 
MENTS 

The races and nations of the world may, as respects 
the forms of Government under which they Hve, be dis- 
tributed into four classes : — 

I. Nations which have created and maintain permanent 
political institutions, allotting special functions to each 
organ of Government, and assigning to the citizens some 
measure of participation in the business of Government. 

In these nations we discover Constitutions in the 
proper sense of the term. To this class belong all the 
States of Europe except Russia and Montenegro, and, 
outside Europe, the British self-governing Colonies, the 
United States and Mexico, the two republics of South 
Africa, Japan and Chili, possibly also the Argentine 
Republic. 

II. Nations in which the institutions aforesaid exist in 
theory, but are seldom in normal action, because they 
are in a state ot chronic political disturbance and mostly 
ruled, with little regard to law, by military adventurers, y 
This class includes the republics of Central and South 
America, with the exception of Chili, and possibly of 
Argentina, whose condition has latterly been tolerably 
stable. 

III. Nations in which, although the upper class is edu- 
cated, the bulk of the population, being backward, has 
not begun to desire such institutions as aforesaid, and 
which therefore remam under autocratic monarchies. 



94 :^OTE TO ESSAY III 

To this class belong Russia and Montenegro. Japan 
has lately emerged from it: and two or three of the 
newest European States might, but for the interposition 
of other nations, have remained in it. 

T\'. Nations which are^ for one reason or another, 
below the level of intellectual life and outside the sphere 
of ideas which the permanent political institutions afore- 
said presuppose and need for their proper working. 
This class includes all the remaining peoples of the world, 
from intelligent races Hke the Chinese, Siamese, and Per- 
sians, down to the barbarous tribes of Africa. 

Constitutions, in the sense in which the term is used 
in the preceding Essay, belong only to the first class, 
and in a qualified sense to the second. In the modern 
world they are confined to Europe and her Colonies, 
adding Japan, which has imitated Europe. In the ancient 
world they were confined to three races, Greeks, Italians, 
and Phoenicians, to whom one may perhaps add such 
races as the Lycians, who had learnt from the Greeks. 
Their range is somewhat narrower than that of law, that 
is to say, there are peoples which, like the ]\Iusulmans 
of Turkey, Egypt, and Persia, have law, but have no 
Constitutions. 

No race that has ever lived under a lost Constitutional 
Government has permanently lost it, except those parts 
of the Roman Empire which now form part of the Turk- 
ish Empire ; and the Roman Empire, though its Govern- 
ment never ceased to be in a certain sense constitutional, 
ultimately extinguished the habit of self-government 
among its subjects. 



IV 



THE ACTION OF CENTRIPETAL 

AND CENTRIFUGAL FORCES ON 

POLITICAL CONSTITUTIONS ' 

As every government and every constitution is the 
result of certain forces and tendencies which bring men 
together in an organized community, so every govern- 
ment and every constitution tends when formed to hold 
men together thenceforth, training them to direct their 
efforts to a common end and to sacrifice for that purpose 
a certain measure of the exercise of their individual 
wills. So strong is the aggregative tendency, that each 
community naturally goes on by a sort of law of na- 
ture to expand and draw in others, whether persons or 
groups, who have not previously belonged to it : nor is 
physical force the prime agent, for the great majority of 
mankind prefer some kind of political society, even one 
in whose management they have little or no share, to 
mere isolation. As this process of expansion and aggre- 
gation continues, the different political groups which it 
has called into being come necessarily in contact with 
one another. The weaker ones are overcome or peace- 
fully absorbed by the stronger ones, and thus the number 
of groups is continually lessened. Where two communi- 
ties of nearly equal strength encounter each other, each 
may for a time succeed in resisting the attraction of the 

' This Essay was composed in the early part of 18S5. It has been revised 
throughout, but the substance remains the same. 



96 CENTRIPETAL AXD CEXTFIEUGAL FORCES 

Other. But in this changeful world it almost always 
happens that sooner or later one becomes so much 
stronger that the other yields to it : and thus in course of 
time the number of detached communities, i.e. of groups 
each with its own centre of attraction, becomes very 
small, because the weak have been swallowed up by the 
strong. This is the general, though, as we shall see, not 
the universal course of events. There is also another 
force at work, which has at some moments in history 
developed great strength. 

I. How THE Tendencies to Aggregation and to Dis- 
junction RESPECTIVELY AFFECT CONSTITUTIONS. 

Of the many analogies that have been remarked be- 
tween Law in the Physical and Law in the Aloral World, 
none is more familiar than that derived from the New- 
tonian astronomy, which shows us two forces always 
operative in our solar system. One force draws the 
planets towards the sun as the centre of the system, the 
other disposes them to fly off from it into space. So in 
politics, we may call the tendency which draws men or 
groups of men together into one organized community 
and keeps them there a Centripetal force, and that which 
makes men. or groups, break away and disperse, a Cen- 
trifugal. A political Constitution or frame of govern- 
m.ent, as the complex totality of laws embodying the 
principles and rules whereby the community is organized, 
governed, and held together, is exposed to the action of 
both these forces. The centripetal force strengthens it, 
by inducing men (or groups of men) to maintain, and 
even to tighten, the bonds by which the members of the 
community are gathered into one organized body. The 
centrifugal assails it, by dragging men (or groups) apart, 
so that the bonds of connexion are strained, and possibly 
at last loosened or broken. That no community can be 
exempt from the former force is obvious. But neither 
can any wholly escape the latter. For every community 



CENTRIPETAL AXD CENTRIFUGAL FORCES 97 

has been built out of smaller groups, and the members 
of such groups have seldom quite lost the attraction 
which each had to its own particular centre, such attrac- 
tion being of course dissociative as regards the other 
groups and their members i. Moreover in no large 
community can there ever be a complete identity of views 
and wishes, of interests and feelings, between all the mem- 
bers. Many must have something to complain of, some- 
thing which sets them against the rest and makes them 
desire to be, for some purposes, differently treated, or 
(in extreme cases) to be entirely separated. The exist- 
ence of such a grievance constitutes a centre round which 
a group is formed, and this group is in so far an element 
of disjunction. Accordingly the history of every com- 
munity and every constitution may be regarded as a 
struggle between the action of these two forces, that 
which draws together and that which pushes apart, that 
which unites and that which dissevers. 

This subject, it may be thought, belongs either to 
History, in so far as history attempts to draw general 
conclusions from the facts she records, or to that branch 
of political science which may be called Political Dyna- 
mics, and is one with which the constitutional lawyer is 
not directly concerned. The constitutional lawyer, how- 
ever, must always, if he is to comprehend his subject and 
treat it fruitfully, be a historian as well as a lawyer. His 
legal institutions and formulae do not belong to a sphere 
ofabstract theory but to a concrete world of fact. Their 
soundness is not merely a logical but also a practical 
soundness, that is to say, institutions and rules must 
represent and be suited to the particular phenomena they 
have to deal with in a particular country. It is through 
history that these phenomena are known. History ex- 
plains how they have come to be what they are. History 
shows whether they are the result of tendencies still in- 

' In the pages that follow the word Group is used to denote the section of per- 
sons within a larger community who may be held together by some tie, whether 
of interest or sentiment or race or local habitation, which makes them a sort of 
minor community inside the larger one. 



98 CEXTRIPETAL AND CENTRIFUGAL FORCES 

creasing or of tendencies already beginning to decline. 
History explains them by parallel phenomena in other 
times and places. Thus the lawyer who has to consider 
and advise on any constitutional problem, and still more 
the lawyer who has to contrive a constitutional scheme 
for grappling with a political difficulty, must study the 
matter as a historian, otherwise he will himself err and 
mislead those whom he advises. Great lawyers often 
have so erred, and with lamentable results. A lawyer 
who shall deal with a constitutional problem as he would 
deal with a technical point in the law of real property will 
be as much astray as an advocate who should prosecute 
or defend a political prisoner with a sole regard to the law 
of treason or sedition which he may find in his books, 
heedless of the temper and opinion of those from among 
whom the jury will be drawn. 

An obvious illustration may be found in the fact that 
when any particular community is studied from the 
constitutional point of view, and the inquiry is raised 
whether it ought to have a Flexible or a Rigid Constitu- 
tion, the question of the comparative actual strength of 
these two forces becomes a vital one. Where the centri- 
petal force is palpably the stronger, either sort of con- 
stitution will do to hold the community together : and 
the choice between the two sorts may be made on other 
grounds. But where the centrifugal force is potent, and 
especially where there are reasons to apprehend its 
further development, the establishment of a Rigid Con- 
stitution may become desirable, and yet may be a matter 
of much dehcacy and difficulty. If the constitution be 
framed in the interests of a centralizing policy, there is 
a danger that it may assume and require for its mainte- 
nance a greater strength in the centripetal forces than 
really exists, and that for the want of such strength the 
constitution may be exposed to a strain it cannot resist. 
Amid the constant change of phenomena, a Rigid Con- 
stitution necessarily represents the past, not the present ; 
and if the tendencies actually operative are towards the 



CENTRIPETAL AND CENTRIFUGAL FORCES 99 

dissociation of the component groups of the community, 
a frame of government which fails to provide scope for 
these tendencies will soon become out of date and unfit 
for its work. Where, on the other hand, the existence of 
distinct groups, each desiring some control of its own 
affairs, is fully perceived and duly admitted as a factor in 
the condition of the community, and where it is desired 
to give legal recognition to the fact, and to protect the 
other local groups or sub-communities from being over- 
ridden by the largest among the groups, or by the com- 
munity as a whole, the creation of a Rigid Constitution 
offers a valuable means of securing these objects. For 
such a constitution may be so drawn as to place the local 
groups under the protection of a fixed body of law, mak- 
ing their privileges an integral part of the frame of gov- 
ernment, so that the whole Constitution must stand or 
fall with the maintenance of the rights enjoyed by the 
groups ^. The familiar instance of such a form of Rigid 
Constitution is a Federal Constitution. It is specially 
adapted to the case of a country where the centrifugal 
forces are so strong that it is clear that the groups will 
not consent to be wholly merged and lost in one com- 
munity, as under a Flexible Constitution might befall 
them, yet where they are sufficiently sensible of the ad- 
vantages of combination to be willing to enter into a 
c[ualified and restricted union. And in these cases it has 
sometimes proved to be an ef^cient engine for further 
centralization. That is to say, the best way of strength- 
ening in the long run the centripetal tendencies has been 
to give so much recognition and play to the centrifugal 
as may disarm them, and may allow the causes which 
make for unity to operate quietly without exciting 
antagonism. 

It appears accordingly that the historian who studies 
constitutions, and still more the draftsman who frames 
them, must have his eye constantly fixed on these two 

* Subject of course to any provisions for amending the Constitution which may 
have been inserted. See Essay III, p. 176 sqq. 

L. of 3. 



100 CENTRIPETAL AXD CENTRIFUGAL FORCES 

forces. They are the matter to which the legislator has 
to give form. They create the state of things which a 
Constitution has to deal with, so laying down principles 
and framing rules as on the one hand to recognize the 
forces, and on the other hand to provide safeguards 
against their too violent action. Their action will pre- 
serve or destroy the Constitution, — preserve it, if it has 
given them due recognition and scope, destroy it, if its 
provisions turn out to be opposed to the sweep of irre- 
sistible currents. The forces that move society are to 
the constructive jurist or legislator what the forces of 
nature are (in the famous Baconian phrase) to man. He 
is their servant and interpreter. They can be overcome 
only by obeying them. If he defies or misunderstands 
them, they overthrow his work. If he knows how to 
use them, they preserve it. But his difficulty is greater 
than that of the physicist, because these social forces are 
more complex than those of inanimate nature, and vary 
in their working from generation to generation. 

II. Tendencies which may operate either as 
Centripetal or as Centrifugal Forces. 

Now let us see what are the chief among the tenden- 
cies which in political society are capable of playing the 
part either of centripetal or of centrifugal forces. 

So far as individual men are concerned, all the ten- 
dencies that work on them may be said to be associative 
tendencies, that is to say, every thing tends to knit indi- 
vidual men together into a band or group, and to make 
them act together. The repulsion of man from man is so 
rare that we may ignore it. Even the keenest individual- 
ist desires to convert other men to his individualism, and 
forms a league for the purpose with others who are like- 
minded. 

As regards political societies, the subject wherewith 
we are here concerned, the tendencies I am going to 
enumerate mav be either associative or dissociative. 



CENTRIPETAL AND CENTRIFUGAL FORCES 101 

Whether in the case of any given State they act as 
agghitinative and consohdating forces or as spHtting and 
rending forces depends upon whether they are at the 
moment giving their support to, or are enHsted in the 
service of, the State as a whole, or are strengthening the 
group or groups inside the State which are seeking to 
assert either their rights within the State or their inde- 
pendence of it. Even obedience, the readiness to submit 
and follow, which might seem primarily a centripetal 
force, may be centrifugal as against the State if it leads 
the partisans of a particular recalcitrant group to sur- 
render their wills to the leaders of that group. Even 
the love of independence, the desire to let each man's 
individuality have full scope, may act as a centripetal 
force if it disposes men to revolt against the tyranny of 
a faction and maintain the rights and interests of the 
whole people against the attempts of that faction to have 
its own way. There are always two centres of attrac- 
tion and two groupings to be considered, the larger, 
which we call the State, and the smaller, which may be 
either a subordinate community, such as a province, 
district or dependency, or only a party or faction. And 
the centripetal force which draws men to the smaller 
centre is a centrifugal force as regards the larger. 

These two tendencies, which I have referred to as 
Obedience and Individualism, are so familiar, and the 
former is a disposition of human nature so generally 
pervasive, as to need no further discussion. The other 
tendencies which may operate either centrifugally or 
centripetally may be classed under the two heads of In- 
terest and Sympathy. Under the head of Interest there 
fall all those influences which belong to the sphere of 
Property, including of course Industry and Commerce 
as means of acquiring property. These influences usu- 
ally make for consolidation and assimilation. It is a gain 
to the trader or the producer that the area of consumers 
which he supplies without the hindrance of an interposed 
customs tariff should be as wide as possible. It is a gain 



102 CENTRIPETAL AND CEXTEIFUGAL FORCES 

that communications by sea and land should be safe, 
easy, swift, and cheap, and these objects are better se- 
cured in a large country under a strong government. 
It is a gain that coinage, weights, and measures should 
be uniform over the largest possible area and that the 
standard of the currency should be upheld. It is a gain 
that the same laws and the same system of courts should 
prevail in every part of a State — and the larger the State 
the better, so far as these matters are concerned — and 
that the law should be steadily enforced and complete 
public order secured. All these things make not only for 
the growth of industry and the spread of trade, but also 
for the value of all kinds of property. And all these in- 
fluences, derived from the consideration of such gains, 
which play upon the citizen's mind, are usually aggre- 
gative influences, disposing him to desire the extension 
of the State and the strength of its central authority. 
Considerations of Interest, therefore, usually operate as 
a centripetal force. It was through commercial interests 
that the States of Germany were, after the fall of the old 
Romano-Germanic Empire, drawn into that Zollverein 
which became a stage towards, and ultimately the basis 
of, the present German Empire. It w^as the increase of 
trade, after the union of Scotland and England, that by 
degrees reconciled the Scotch to a measure which was 
at first most unpopular among them as threatening to 
extinguish their national existence. It is the absence 
of any strong commercial motives for political union 
that has hampered the efforts of those who have 
striven, so far successfully, to keep Norway and Sweden 
united. 

In exceptional cases, however, the influences of Inter- 
est may be centrifugal. A particular group of traders or 
landowners, for instance, living in a particular district, 
may think they will gain more by having the power to 
enact special laws for the conduct of their own affairs or 
for the exclusion of competing persons than they will by 
entering or by remaining under the uniform system of a 



CENTRIPETAL AND CENTRIFUGAL FORCES 103 

large State ^. Trade considerations counted for some- 
thing in making the planters of the Slave States of 
America desire to sever themselves from a government 
in which the protectionist party was generally dominant. 
It is partly on economic grounds that the various 
provinces of the Cis-Leithanian part of the Austro- 
Hungarian Monarchy have been allowed, and desire 
to maintain, each its autonomy. It was largely a diver- 
gence of economic views and interests that so long 
deterred the free trade colony of New South Wales 
from linking its fortunes in a federation with the pro- 
tectionist colonies ; nor were there wanting industrial 
grounds which made the adhesion of Queensland long 
doubtful. 

To the head of Sympathy we must refer all the influ- 
ences which flow not from calculation and the desire of 
gain, but from emotion or sentiment. The sense of 
community, whether of belief, or of intellectual convic- 
tion, or of taste, or of feeling (be it affection or aversion 
towards given persons or things), engenders sympathy, 
and draws men together. To the same class belong the 
recognition of a common ancestry, the use of a common 
speech, the enjoyment of a common literature. The im- 
portance of these factors has often been exaggerated. 
Some of the keenest Irish revolutionaries have been 
English by blood and Protestants by faith. The Border- 
ers of Northumberland and those of Berwickshire did 
not hate one another less because they were of the same 
stock and spoke the same tongue. The Celts of Inver- 
ness-shire and the Teutons of Lothian are now equally 
enthusiastic Scotchmen, though they disliked and de- 
spised one another almost down to the days of Walter 

1 The case of Ireland shows the same forces of industrial or commercial in- 
terest, real or supposed, operating partly as centripetal, partly as centrifugal. 
The Nationalist party conceive that economic benefits would result from a local 
legislature, which could aid local industries. The mercantile class, especially in 
the north-eastern part of the island, fear commercial loss from anything which 
could hamper their trade intercourse with Scotland and England, or which might 
be deemed prejudicial to commercial credit. With the soundness of either view I 
am not concerned ; it is sufficient to note the facts. 



104 CENTRIPETAL J.TZ) CEXTRIFUGAL FORCES 

Scott 1. INIere identity of origin does not count for much, 
as witness the ardent Hungarian patriotism of most of 
the Germans and Jews settled in Hungary, with perhaps 
no drop of Magyar blood in their veins. Community of 
language does not any more than a common ancestry 
necessarily make for love, and indeed may increase 
hatred, because in an age of newspapers each of two dis- 
putant parties can read the injurious things said of it by 
the other. Civil wars are, like family quarrels, prover- 
bially embittered. Tocqueville wrote, in 1833, that he 
could imagine no more venomous hatred than the Amer- 
icans then felt for England. So it may be said that 
though the want of these elements of community is usu- 
ally an obstacle to unity, their presence is no guarantee 
for its existence. Somewhat greater value belongs to 
identity of traditions and historical recollections, and to 
the possession of the materials for a common pride in 
past achievements. Most men find a personal satisfac- 
tion and take a personal pride in recalling the feats and 
struggles of the nation, or the tribe, or the party, or the 
sect, to which they belong, so the recollection of exploits 
or sufferings becomes an effective rallying point for a 
group. We all know how powerful a force such memo- 
ries have been at various times in stimulating national 
feeling in Italy, in Germany, in Hungary, in Scotland, 
in Portugal, in Ireland. 

Still less necessary is it to dwell upon the influence of 
Religion, which, as it touches the deepest chords of 
man's nature, is capable of educing the maximum of 
harmony or discord. No force has been more efficient 
in knitting factions and States together, or in breaking 
them up and setting the parts of a State in fierce an- 
tagonism to one another. Religion held together the 
Eastern Empire, originally a congeries of diverse races, 
in the midst of dangers threatening it from every side for 

1 A curious survival of the dislike of the Lowlander to the Highlander may be 
found in Carlyle's comments upon the Highland wife of his friend Thomas Camp- 
bell the poet. 
15 



CENTRIPETAL AND CENTRIFUGAL FORCES 105 

eight hundred years. Religion now holds together the 
Turkish Empire in spite of the hopeless incompetence 
of its government. Religion split up the Romano-Ger- 
manic Empire after the time of Charles the Fifth. The 
instances of the Jews and the Armenians are even more 
familiar. 

There remains a large and rather miscellaneous cate- 
gory of sources of sympathy which we may call by the 
general name of Elements of Compatibility. Traits of 
character, ideas, social customs, similarity of intellectual 
culture, of tastes, and even of the trivial usages of daily 
life, all contribute to link men together, and to assimilate 
them further to one another, as the absence of these 
things tends to differentiation and dissimilation, because 
it supplies points in which the members of one group, 
racial or local or social, feel themselves out of touch with 
the members of another, and possibly inclined to show 
contempt, or to think themselves contemned, on the 
ground of the divergence. The natural repulsion which 
the Germans usually feel for the Slavs, and the Slavs 
for the Germans, seems to have its root in a difiference of 
character and temperament which makes it hard for 
either race to do full justice to the other. That repulsion 
is powerfully operative to-day in the Austrian Empire. 
In the ancient world the obstinate and passionate Egyp- 
tians seem to have displayed, and provoked, a similar 
antagonism in their contact with other races, and par- 
ticularly with the arrogant Persians. 

These influences of Sympathy, like those of Interest, 
may figure either as centripetal or centrifugal forces, 
according as the centre round which they group and 
towards which they draw men is the main centre of that 
larger circle represented by the State or the centre of 
the smaller circle represented by the tribe, the district, 
the province, the faith, the sect, the faction. The same 
feeling may play the one part or the other according to 
the accident of individual view, or taste, or environment. 
Thus in a University consisting of a number of autono- 



106 CENTRIPETAL AXD CENTRIFUGAL FORCES 

mous colleges, one man may be a centralizer, and seek 
to bring the colleges into subordination, pecuniary and 
administrative, to the University, while another man 
may desire to maintain their independence, and yet both 
may set a high value on corporate spirit, and be filled 
with it themselves. In one man this spirit clings to 
the college, in another it glorifies the University. The 
patriotism which makes a Magyar desire that Hungary 
should absorb Croatia, and that which makes a Croat 
desire to sever his country from Hungary, are essen- 
tially the same sentiment, though, as regards the mon- 
archy of the Hungarian Crown, the sentiment operates 
with the Magyar as an attractive, with the Croat as a 
repulsive force. This statement is generally true of that 
complex feeling, based upon affinities of race, of speech, 
of literature, of historic memories, of ideas, which we 
call the Sentiment of Nationality, a sentiment compara- 
tively weak in the ancient world and in the Middle Ages, 
and which did not really become a factor of the first 
moment in politics till the religious passions of the six- 
teenth and seventeenth centuries had almost wholly sub- 
sided, and the gospel of political freedom preached in the 
American and French Revolutions had begun to fire 
men's minds. As regards the historical States of Europe, 
it is a sentiment which is both aggregative and segre- 
gative. It has contributed to create the German Em- 
pire : yet it is also a sentiment which makes Bavaria 
unwilling to merge in that Empire her individual exist- 
ence. In Bavaria, and still more in the case of Scotland, 
which had a long and brilliant national history, the senti- 
ment of local has been found compatible with a senti- 
ment of imperial patriotism. 

It is a remarkable feature of recent times that the 
tendency of a common interest to draw groups together 
and make them prize the unity of the State is often 
accompanied by the parallel development of an opposite 
tendency, based on sentiment, to intensify the life of the 
smaller group and in so far to draw it apart, and thereby 



CENTRIPETAL AND CENTRIFUGAL FORCES 107 

weaken the unity of the State. This arises from the 
fact that the march of civihzation is material on the one 
hand, intellectual and moral on the other. So far as it is 
material, it generally makes for unity. On its intellec- 
tual and social or moral side it works in two ways. It 
tends to break down local prejudices and to create a 
uniform type of habits and character over a wide area. 
But it also heightens the influence of historical memo- 
ries. It is apt to rekindle resentment at old injuries. 
Filling men's minds with the notion of social and politi- 
cal equality, it disposes them to feel more keenly any 
social or political inferiority to which they may be sub- 
jected. Raising the estimate they set upon themselves 
as individuals and as a race, it makes them more bold in 
organizing themselves and claiming what they deem 
their rights. And so one notes the singular phenomenon 
that men are stirred to disaffection, or impelled towards 
separation, by grievances less acute than those which 
their ancestors, sunk in ignorance and despondency, 
bore almost without a murmur. The Roman Catholic 
Irish since 1782 and the Transylvanian Rumans since 
1848 are instances in point. 

All these tendencies, pulling this way and that, are 
among the facts which a given Constitution has to deal 
with, are forces which it must use in order to secure its 
own strength and permanence. Where, in a free country, 
the system of government has grown up naturally, and 
can be readily modified by the normal action of the 
normal sovereign authority, i.e. where the Constitution 
is a Flexible one, the presumption is that the rules and 
usages of the Constitution conform to and represent the 
actual forces, and draw strength therefrom. Yet even 
in countries governed on this system there is a risk that 
the Constitution which the will of a majority has estab- 
lished may leave a minority discontented and unrestful, 
and that such discontent and unrest may impede the 
working of the machinery and create an element of in- 
stability. In such countries, it may be the part of wis- 



108 CENTRIPETAL AXD CEyTRIFUGAL FORCES 

dom for the majority to yield something to the minority, 
modifying the Constitution, so far as it can safely be 
modified, in order to remove the obstacles to harmony. 
A centrifugal force which is not strong enough to dis- 
rupt the State, because the centripetal forces are on the 
whole more powerful, may nevertheless be able to cause 
a harmful friction, and may even, if the State be exposed 
to external attacks, become a source of peril. Every- 
body can now see that Rome ought to have admitted 
the Italian allies to the franchise long before the Social 
War, that Catholic Emancipation ought to have been 
enacted by the Irish Parliament in 1796 or by the British 
Parliament immediately after the Union of 1800, that 
Denmark ought not to have waited till 1874 before she 
conceded a qualified autonom}' to Iceland, that the same 
country might probably have retained Schleswig-Hol- 
stein if she had yielded long before the war of 1864 some 
of the demands made by the German inhabitants of those 
duchies. And, if we may apply the same principle to 
despotically governed countries, most people will agree 
that Austria ought to have retired from Lombardy be- 
fore 1859, and that the Turks gained nothing by cling- 
ing to Bulgaria, and may be gaining nothing now by 
clinging to Macedonia, 

III. How Constitutions may use the Centripetal 
Forces to promote National Unity. 

As we are here dealing with constitutions considered 
in their relation to the forces and tendencies that rule in 
politics (i.e. as a part of political dynamics), we may now 
inquire what it is that Constitutions can accomplish in 
the way of regulating or controlling these forces. 

Every political Constitution has three main objects. 

One is to establish and maintain a frame of govern- 
ment under which the work of the State can be efficiently 
carried on, the aims of such a frame of government 
being on the one hand to associate the people with the 



CENTRIPETAL AND CENTRIFUGAL FORCES 109 

government, and, on the other hand, to preserve public 
order, to avoid hasty decisions and to maintain a tolera- 
ble continuity of policy. 

r^Another is to provide due security for the rights of 
the individual citizen as respects person, property, and 
opinion, so that he shall have nothing to fear from the 
executive or from the tyranny of an excited majority. 
C "^ This object has fallen into the background since these 
rights came to be fully recognized. But in earlier times 
^j it was the chief purpose of constitutional provisions,-// 
from Magna Charta down to the Bill of Rights and the 
Declaration of Independence. The safeguard for these 
rights which the Constitution of England provided, was 
the thing which, more perhaps than anything else, moved 
the admiration of foreign observers who studied that 
constitution during the eighteenth century. 

The third object is to hold the State together, not 
only to prevent its disruption by the revolt or secession 
of a part of the nation, but to strengthen the cohesive- 
ness of the country by creating good machinery for 
connecting the outlying parts with the centre, and by 
appealing to every motive of interest and sentiment that 
can lead all sections of the inhabitants to desire to re- 
main united under one government. 

In pursuing these objects, a constitution seeks to !'\ 
achieve by means of legal provisions that which in ruder 
times it was often necessary to accomplish by physical 
force. No doubt at all times the natural disposition to 
obey (the sources of which I have analysed elsewhere ^) 
was an agent more constant and effective than physical 
force. Nevertheless, the latter was needed, sometimes 
from the side of the government to maintain order and 
compel subjects to bear their share of the public bur- 
dens, sometimes from the side of the subjects to abate , 
the abuses into which the possession of power tempts ' 
rulers. Troops to keep order and quell revolts, and 
men handy with their weapons and ready to rise in insur- 

1 See Essay IX, p. 467 sqq. 



110 CENTRIPETAL AND CEXTSIFUGlL FORCES 

rection to dethrone bad monarchs or expel bad minis- 
ters, were a necessary part of the equipment of pohtical 
societies in the nider ages. 

A good constitution reheves the government from 
the necessity of frequently resorting to military force by 
securing that those who govern shall be persons ap- 
proved by the bulk of the citizens, as well as by providing 
for the purposes of coercion machinery so promptly, 
and effectively applicable, that the elements of disturb- 
ance either do not break forth or are quickly suppressed. 
Similarly it relieves the subjects from the need of rising 
in rebellion by providing machinery whereby the com- 
plaints of those who think themselves aggrieved shall 
be fully made known, and shall, if well founded, have 
due effect on the rulers by warning them to remove the 
grievances, or by displacing them if they fail to do so. 

How constitutional machinery should be framed and 
worked for the attainment of the two former objects 
enumerated above, viz. the estabhshment of a proper 
frame of government and the safeguarding of private 
rights, is a matter which does not fall within the scope 
of our present inquiry. The third object does, so we 
have to ask how a constitution should be framed in order 
to enable it to maintain and strengthen the unity of a 
State. 

It may do this in two ways. One is by setting various 
centripetal forces to work. The other is by preventing 
all or some of the centrifugal forces from working. 

I have already enumerated the tendencies or influ- 
ences which operate to draw men together and bind 
them into a community, be it greater or smaller, and 
have pointed out that these tendencies may in any given 
case operate in favour either of the State as a whole, in 
which case they preserve it, or in favour of some group 
or section within it, in which case they sap its unity. Let 
us now consider how the constitutional arrangements 
of a State may be so devised as to draw together all its 
members and all the minor groups within it. 



CENTRIPETAL AND CENTRIFUGAL FORCES 111 

The most generally available of these centripetal ten- 
dencies is trade, that interchange of commodities which 
benefits all the producers, by giving them a market, all 
the consumers by giving them the means of getting 
what they want, all the middlemen by supplying them 
with occupation. A Constitution can render no greater 
service to the unity as well as to the material progress 
of a nation than by enabling the freest interchange of 
products to go on within its limits. Nothing did more 
to keep the districts of each of the great European 
countries divided during the Middle Ages than the levy- 
ing of tolls along the rivers and highways by petty po- 
tentates, or than the insecurity of those rivers and high- 
ways, as well as the want of good roads, for thus the 
market for the producers of the cheaper articles was 
narrowed to the small area immediately around them, 
and men were prevented from realizing, or benefiting 
by, the greatness of the country they belonged to. Eng- 
land, with an exceptionally strong and centralized gov- 
ernment, sulifered less from these tolls and this insecu- 
rity than did the large States of the Continent, and 
England arrived at unity sooner than they did. And so, 
conversely, nothing has done more to unify the vast ter- 
ritories of the United States than the provisions of the 
Federal Constitution which secure perfect freedom of 
trade within its limits, and empower the National Gov- 
ernment to regulate the means of communication be- 
tween the several States of the Union. So the Customs 
Union of the Germanic States, formed under the au- 
spices of Prussia in a.d. 1829, did a great work in stimu- 
lating industry, while it showed the people the benefits 
of united action, and prepared the way for the formation 
of the new German Empire. 

Another influence of moment is the establishment of 
a common law and a common system of courts. It is 
not an influence which can be reckoned on so invariably 
or confidently as can the influence of commerce, for any 
hasty attempt to change the law (whether customary or 



112 CENTRIPETAL AXD CEXTSIFUGAL FOECES 

Statutory) to which men are accustomed may provoke 
resistance and retard the growth of unity. Great Britain 
has wisely forborne to impose her own law on the do- 
minions she has acquired by conquest or purchase. 
Rom.an-Dutch law remains in South Africa, in Ceylon, 
and in Guiana ; Roman-French law in Lower Canada. 
So the French Code was left in force not only in Alsace- 
Lorraine which Germany took in 1871 but also in the 
German country all along the left bank of the Lower 
Rhine, when that region was reunited to Germany in 
1814. So Roman law has remained in Louisiana, which 
was once French. But where one legal system can, 
without exciting resentment, be extended over the whole 
of a country, it becomes a valuable unifying force. As 
respects the substance of l^w, this happens by the forma- -j 
tion of certain habits of thought and action, certain ideas 
of justice and utility. As respects the administration of 
law, it happens by giving to the central executive an 
engine for making its power felt, and usually felt for 
good. In the ^liddle Ages, the jurisdiction of the king's 
courts was found the most effective means both in Eng- 
land, from Henry II onward, and (somewhat later) in 
France, of extending the power of the central govern- 
ment and accustoming the people to rally round the 
Crown as the representative of national unity as well as 
of justice. A somewhat similar process has been in pro- 
gress during the last thirty years among those petty 
principalities which we call the Laos States, and which 
lie to the north of the kingdom of Siam. The princes of 
these States were practically independent, living in a 
country of forests and hills, and recognizing only a vague 
titular suzerainty as vested in the Siamese king at Bang- 
kok. But when foresters from British Burma had come 
among them, desiring to cut down and export the teak 
trees in those forests which make their only wealth, and 
when disputes had arisen between the Laos chiefs and 
these timber traders, the Government of India found it 
needful to make treaties with the king of Siam, under 



CENTRIPETAL AND CENTRIFUGAL FORCE ii 113 

which a Court presided over by Siamese officials was 
set up in Chiengmai, the principal State. By means of 
this Court the Siamese Government has been able gradu- 
ally to obtain complete control of the forest administra- 
tion and the revenues thence arising, and incidentally to 
strengthen its general authority over these Laos States. 

Similarly, the jurisdiction of the British Privy Council 
as a Supreme Court of Appeal from the Colonies and 
India, and the action of the Supreme Court of the United 
States as the final Court of Appeal for the whole Union 
(in certain classes of cases), have done something to 
make the members of these vast political aggregates 
realize the bond that links them together. In the case 
of the United States, respect for the Federal Courts and 
the keen interest with which their development of the 
law by judicial interpretation is followed by a large and 
powerful profession has been an important factor in 
strengthening the sense of national unity. 

After law, religion, not as less potent, for it is more 
potent, but as more uncertain, because it has been as 
often a dissevering as a unifying influence. There is, 
however, a marked distinction between the earlier and 
the later forms of religion as regards the energy of the 
force they exert. In the earlier stages of civilization, 
when tradition and ritual counted for much, and abstract 
theology had not yet come into being, the worship of the 
gods of the nation or city was a part, a necessary and 
sometimes the most deep-rooted part, of the political 
constitution and the national life. In Egypt the rise or 
fall of a great deity is often the sign of the rise or fall 
of a dynasty. Moab, Edom, and Amnion, are each the 
people of a peculiar God. After the Captivity, when 
the minor Semitic peoples decline or vanish, Israel con- 
tinues to be held together by the name of Jehovah, and 
by the Law He has given. Every Greek and every Ita- 
lian city has its own distinctive public State worship. A 
race sometimes pays special honour to one out of its 
various deities, and the devotion of the Dorians to 



114 CEXTRIPETAL AXD CEXTRIFUGAL FORCES 

Apollo, of the Athenians to the Virgin Goddess, finds a 
mediaeval parallel in that of the Swedes to Odin, of the 
Norwegians to Thor. As the Roman Empire included 
so many races and cities that no one deity or group of 
deities could be worshipped by all, altars were erected 
to the Goddess Rome, and the Guardian Spirit or Genius 
of the reigning Emperor became a common object of 
devotion for the whole mass of his subjects. In modern 
times the strong religions are (except Hinduism) World 
Religions, and therefore not national or local as were 
those of antiquity. But they exert an even greater po- 
litical power. For monotheistic religions, however they 
may develop into elaborate rites and forms of ceremonial 
observance, are primarily philosophical religions, in 
which abstract ideas and beliefs take not only a firm but 
an exclusive grasp of the mind and heart of whosoever 
holds them. Hence they form a closer tie than did the 
worships of the ancient Italo-Hellenic world. Christian- 
ity created a new cohesion when the provinces of the 
Roman Empire were beginning to fall asunder. Islam 
formed a prodigious dominion out of many diverse peo- 
ples. The mutually hostile forms of a "World Religion, 
such as the Sunnite and Shiite sects in Islam, act as con- 
solidating or dissevering influences just as the religion 
itself did before schisms had arisen. When a faith 
grounded in peculiar dogmas or observances is held by 
one section of a people and hated by another section, 
it becomes a formidably centrifugal force. When the 
great mass of a people have embraced such a faith, their 
political cohesion is strengthened, and they may attract 
from other communities persons or groups who share 
their beliefs. The same principle applies to beliefs 
which cannot be called religious, but which exert a 
similar power over men's emotions. Even where no 
question of the supernatural is involved, the holding in 
common of certain ideas deemed supremely valuable 
whether for the individual or for society, may operate 
as a centrifugal or centripetal force. 



CENTRIPETAL AND CENTRIFUGAL FORCES 11 o 

A nation with a national religion which all or nearly- 
all citizens cherish possesses a bond of unity which grows 
the more powerful the more its traditions become en- 
twijied with the national life. It is chiefly the influence of 
the Orthodox Church that has made a people so low in 
the scale of civilization as Russia was three centuries 
ago, to-day so united, so strong through its union, and so 
submissive to its sovereign, for it is not less as Head 
of the Church than as a secular prince that the Czar 
commands the reverence of his subjects ^. Accordingly, 
whenever a State Church can be set up which embraces 
practically the whole of the people, and when it can be 
associated with the government and the movements of 
public life, the cohesion of the nation and the power of 
the government which controls the church will be in- 
creased. Of the possibly pernicious influence of such 
arrangements on such a church and on religion I do not 
speak ; that is quite another matter. I am only pointing 
out that a Constitution will gain strength, and a nation 
unity, if the ecclesiastical arrangements can be linked to 
those of the secular government, assuming the people 
to be all attached to the same form of faith and worship. 

Similarly, in so far as those who frame a Constitution 
can make it provide a system of education which will 
give the people common ideas and common aspirations, 
in so far as they can persuade the inhabitants to use a 
common language, if the country is one where more than 
one tongue has been spoken, or even to enjoy and meet 
for the enjoyment of common festivities and games, they 
will be availing themselves of influences not to be de- 
spised. The Prussian Government founded the Uni- 
versity of Bonn immediately after the recovery of the 
left bank of the Rhine from France in 1814, and the 
University of Strassburg immediately after the recovery 
of Alsace in 1871, in both cases with the view of bene- 

1 There are of course dissenting sects in Russia, some of them counting many 
adherents, but they have seldom, and in no large measure, affected the political 
unity of the nation. 



116 CENTRIPETAL AND CENTRIFUGAL FORCES 

fiting these territories and of drawing them closer to 
the rest of the country by the afflux of students from 
other parts of it, an aim which was reahzed. Indeed the 
non-local character of the German Universities, each 
serving the whole of the lands wherein the German 
tongue was spoken, powerfully contributed to intensify 
the sentiment of a common German nationality through- 
out the two centuries (1648 to 1870) during which Ger- 
many had virtually ceased to be a State. The Olympian, 
Pythian, Isthmian, and Nemean games had no con- 
temptible effect in fostering the sentiment of a common 
national unity, as against the barbarians, among the 
Greeks, who had never enjoyed and did not desire politi- 
cal union. The admission of the Macedonian king to 
strive at the Olympian games was a political event of 
high significance, for it enabled his descendants Philip 
and Alexander the Great to claim to belong to the Hel- 
lenic race. 

Some of these various engines for promoting the co- 
hesion of a nation may seem to lie rather in the sphere 
of governmental action than in that of a Constitution. 
Commercial freedom, however, as well as religious com- 
pulsion on the one hand, or religious freedom on the 
other hand, have been provided for by some Rigid Con- 
stitutions. So too has been the use of certain languages. 
Where the Constitution is a Flexible one, the question 
whether the laws regulating such matters are to be 
deemed a part of the Constitution depends entirely on 
the practical importance ascribed to them, since in such 
a Constitution there is no distinction of form between 
fundamental and other provisions. 

IV. How Constitutions may Reduce or Regulate 
THE Centrifugal Forces. 

Now let us see what Constitutions may effect in the 
other of the two above specified ways, viz. what they 
may do to meet and grapple with, and if possible disarm. 



CENTRIPETAL AND CENTRIFUGAL FORCES 117 

the tendencies which make for disruption, i.e. the forces 
which, while drawing men together in minor groups 
within the State, are as regards the State itself centri- 
fugal forces. 

What are these tendencies ? History tells us that the 
chief among them are ra^e feeling, resentment for past 
injuries, grievances in respect of real or supposed ill- 
treatment in matters of industry, or of trade, or of edu- 
cation, or of language, or of religion, where these griev- 
ances or any of them press on a part only of the popu- 
lation. If they press on the whole population, or on the 
humbler classes as a whole, they are perturbing, but 
not necessarily nor even probably disruptive, i.e. they 
threaten disafifection or a general revolt against the gov- 
ernment, rather than the severance of a particular pro- 
vince or the secession of a particular section of the 
people. It is only with grievances which afTect one sec- 
tion or district, and make it desire an independence to 
be obtained by separation, that we have here to deal. 
There must be in every such case either a sentiment of 
dislike on the part of the disaffected section towards the 
rest of the nation, or else a belief that great material ad- 
vantages will be obtained by separation ; and the latter 
of these causes is almost sure to produce the former. 
When two or more of these tendencies combine in any 
given case, so much the stronger does the desire for 
separation become. 

A few illustrations will explain better than a long ab- 
stract statement what I desire to convey. In the ancient 
world the thing which we call National Sentiment was 
seldom a powerful factor, perhaps because the more ad- 
vanced peoples were divided into small city communities, 
while the backward peoples, living under large empires 
like the Persian or that of the Seleucid kings, were 
allowed to retain their own customs and religion, and 
often their native princes, feeling the weight of subjec- 
tion only in having to pay tribute and send a contingent 
in war. The only nations that gave much trouble to the 



118 CENTRIPETAL AND CENTRIFUGAL FORCES 

Achaemenid kings of Persia were the Egyptians, a race 
very peculiar and very conceited, and the Greeks of Asia 
Minor. Under the Roman Empire there were wonder- 
fully few national revolts, probably because the imperial 
government pressed equally upon all, conceded rights of 
citizenship pretty freely, and gave the subjects in ex- 
change for their own national sentiment the higher pride 
of belonging to the majestic World State which had en- 
gulfed them. The chief source of disruptive attempts 
lay in the monotheistic religions. The Jews made more 
than one obviously hopeless rebellion. When Chris- 
tianity became the religion of the Empire, schisms and 
heresies gave trouble. Africa was convulsed by the 
Donatist movement. Egypt was disaffected owing to 
Monophysitism, and no doubt gave herself the more 
readily to the Arab conquerors in respect of this dis- 
affection. The persecuted Montanist sectaries of Phry- 
gia revolted in the sixth century. It was the religious 
persecution of the Fire-worshipping Sassanid kings that 
provoked their Armenian vassals to rebellion^. So in 
the fifteenth and sixteenth centuries, the sentiment of 
nationality having not yet reached its full strength, it 
was chiefly by religious divisions that the unity of States 
was threatened. This was what lost the Dutch Nether- 
lands to Spain. This was what split up the Romano- 
Germanic Empire, and made it, after the Thirty Years' 
War, the mere shadow of a State. It contributed to 
keep the Highlanders distinct from the Lowland popu- 
lation of Scotland after the Reformation (though other 
causes also were at work), and it was of course a still 
more potent force in Ireland. In our own time it nearly 
rent Switzerland in two in the war of the Sonderbund. 
Conversely, any one who notices how little the unity 
of the nation has been threatened in Spain, a country 
where the populations and dialects of the different pro- 
vinces still present striking contrasts, and are accom- 

1 The dualistic Zoroastrianism of Persia seems to have taken many of the cha- 
racteristics of a monotheistic relig-ion. 



CENTRIPETAL AND CENTRIFUGAL FORCES 119 

panied by diversities of character, will be disposed to 
attribute this fact not merely to the absence of natural 
boundaries between the provinces, but also to the re- 
markable religious unity which the nation has always 
preserved. 

In our own time, while religion is a less energetic 
factor, what is called national sentiment has begun to 
threaten loosely compacted States. It compelled the 
transformation in 1868 of the so-called Austrian Empire 
into the present Dual Monarchy. It shakes the Austrian 
half of that monarchy now, so sharp is the antagonism 
between the Czechs of Bohemia and the other Slavic 
populations of Cis-Leithania and the Germans of the 
Western and South-Western Crown Lands. Iceland 
differs from Denmark, with which she has been politi- 
cally united since 1380 (or 1397), in language, in character, 
and in habits, and she has therefore struggled for au- 
tonomy, a large measure of which she obtained in 1874. 
She has had some economic grievances, but sentiment 
has been an even stronger element in her discontent, 
which, however, stopped short of a wish to separate, as 
she feels herself too small to stand alone. A strong 
party in Norway has desired to be divorced from Swe- 
den, to which she was unnaturally yoked in 1814 by the 
Congress of Vienna, not merely in respect of specific 
complaints regarding the Foreign Office and the consu- 
lar service, but also because her people, though Luther- 
ans like the Swedes, are far more democratic in ideas 
and temper than the latter, and because their high na- 
tional pride makes them unwilling to appear to be in 
any way subordinate to the sister kingdom. The case 
of Poland is a simple one, because she has the memory of 
an independent kingdom destroyed by force and fraud, 
and is dififerent in religion, as well as in speech, from the 
Russians who have annexed her. Had the peasant popu- 
lation of the country shared the patriotism of the upper 
and middle classes, Poland might possibly have suc- 
ceeded in shaking off the yoke. Even now her disafifec- 



120 CEymiPETAL AXD CEXTFIFUGAL F0BCE8 

tion is a source of weakness to Russia. In Ireland 
several currents of discontent have joined to produce the 
passion and prolong the struggle for autonomy, or, in a 
very few of the more ardent minds, for independence. 
There is the diversity of faith, which remains, though that 
of language has almost vanished, a diversity embittered 
by recollections of persecution. There are economic 
grievances, the memory of the destruction of an industry 
in the last century, the more urgent resentment at the 
exactions of landlords, and the peasants' desire to have 
a grip of the soil. There is an incompatibility of cha- 
racter and temperament, due partly to historical condi- 
tions, partly to the old antagonism of Celt and Teuton. 
All these have gone to create a passion among the people 
to be recognized as a nation controlling its own affairs, 
a passion which is the same in essence among those who 
would be content with the possession of a subordinate 
legislature, and those, now fewer than formerly, who 
would like to go further. 

If the sources of the centrifugal force in Ireland are 
easily explicable, and indeed so strong that had this force 
acted upon the whole nation instead of only upon a ma- 
jority which consists mainly of the poorer and weaker 
part of the population, it would have before now pre- 
vailed, those which induced the secession of the South- 
ern States of America are much less evident. Here 
there was no religious factor, nor any revengeful feeling, 
nor any sense of an unjust or oppressive control. The 
South had obtained more than its fair share of power 
and influence in the councils of the Union. But the 
planters had persuaded themselves that property in 
slaves and the whole slave-holding system were threat- 
ened by the growing strength in the Northern and West- 
ern States of an aversion to slavery, with a determina- 
tion to check its extension ; and the irritation of feeling 
which a long struggle had engendered, coupled with a 
growing dissimilarity of habits and ideas, enabled the 
hot-headed oligarchy which controlled the Southern 
16 



CENTRIPETAL AND CENTRIFUGAL FORCES 121 

population to drive it into separation. Possibly these 
causes would not have been strong enough to provoke 
an armed conflict in a unified country. It was the exist- 
ence of State Governments, and the conviction that the 
rights of the States, supposed to be guaranteed by the 
Constitution, furnished a legal basis for secession, that 
spurred the South into its desperate venture. 

What then can the framing, or the manipulation in 
working, of a Constitution do to reduce the power of 
such disruptive tendencies as we have been considering? 

They may of course be resisted by the employment 
of physical force. If a government is sufificiently strong 
and resolute, and is supported by the great majority of 
the nation, it may crush down the discontent of a pro- 
vince or a section. It is however an axiom in free gov-' 
ernments, and ought to be an axiom in all governments, j^"^ )'• 
that physical force should never be used when peaceful' 
means will suffice. Coercion usually seems easier, and' J 
naturally commends itself to the dull, the impatient, and ' 
the violent, to imperious princes, arrogant ministers, and 
excitpd majorities. But coercion, besides being a fatal 
expedient if it fails, is often a bad expedient when it ap- 
pears to succeed, for it leaves smouldering discontent 
behind among the vanquished, and it is apt to inflict a 
moral injury upon the victors, perhaps to warp for the 
future their frame of government and to lower their po- 
litical traditions. Accordingly whenever a Constitution 
can be so drawn and worked as to give the disjunctive 
tendencies just so much recognition as may disarm their 
violence, and bring all sections of the nation and all 
parts of the country to acquiesce in unity under one gov- 
ernment, this course is to be preferred. It may some- 
times fail. Every expedient may fail. But it has gene- 
rally more promise of ultimate success than force has, 
for in a free country force is not a remedy, but a confes- 
sion of past failures and a postponement of dangers/ 
likely to recur. 

Among the methods which a Constitution mav em- 



122 CENTRIPETAL AND CENTRIFUGAL FORCES 

ploy for the purpose indicated, the following find a 
place. 

It may enact certain securities against oppression, 
whether by the executive or by the legislature, giving 
to such securities a specially solemn sanction, and thus 
reassuring the minds of the citizens. This was done by 
Magna Charta, by the Petition of Right, and again by 
the American Federal and State Constitutions, and by 
the French Declaration of the Rights of Man of 1789. 
It is usually done for the protection of all subjects or citi- 
zens alike, but of course the benefit of such a protection 
enures with special value for any section of the popula- 
tion, or any province or group of provinces, likely to be 
specially exposed at any given time to the abuses of 
power, because they are a minority whom the Govern- 
ment, or the majority, may view with disfavour. 

A Constitution may provide means for varying the 
general institutions or laws of the State in such a way 
as to exempt particular parts of the State from any legis- 
lation that might be opposed to their special interests or 
feehngs. The retention of Scotland as a distinct king- 
dom after the union of the crowns in 1603, and as a dis- 
tinct part of the United Kingdom after the Treaty and 
Act of Union in 1707, has had most beneficial effects in 
enabling Scotland to be treated separately where it is 
fitting she should be. Her faith, her laws and judicature, 
her system of local government, have remained almost 
intact, to the satisfaction of her people, and with no in- 
jury to the cohesion of the united monarchy 1. Similarly 
the maintenance of Finland as a separate Grand Duchy, 
with her own tongue, religion, laws and privileges, gua- 
ranteed by the coronation oath of the Czar, has made 
the Finns loyal and contented subjects, and has in no 
wise detracted from the strength of Russia -. The cases 

1 Though it must be admitted that the passing of legislation disapproved by 
the majority of Scotch representatives, or the omission to pass legislation which 
they demand, often elicits murmurs. 

2 This wise policy seems unfortunately to be now (1900) on the point of being 
abandoned, with results which every lover of freedom and progress must regret. 



CENTRIPETAL AND CENTRIFUGAL FORCES 123 

of Hungary as towards the Austrian Monarchy, and of 
Croatia as towards Hungary, are also in point. 

It may provide for relegating certain classes of affairs 
to local legislatures, such as those of Croatia or Finland, 
areas which are not only, like Scotland, political divi- 
sions retaining their old laws, but also, unlike Scotland, 
since the Union, communities enjoying local autonomy. 
All Federations are managed on this system ; and one 
can see in the case of Canada the advantages it secures, 
for the Roman Catholics of Quebec are able to have 
legislation diverse from that which the Protestant ma- 
jority desires in the other provinces of the Dominion. 

It may assign certain administrative and, within limits, 
certain legislative functions also to the inhabitants of 
minor local areas, such as counties, empowering them 
to regulate their local afifairs in their own way. Pro- 
visions of this nature are not usually embodied in Euro- 
pean constitutional instruments. They are, however, to 
be found in the State Constitutions of the American 
States. And they are really, in substance, parts of any 
well-framed Constitution, for nothing contributes more 
to the smooth working of a central government and to 
the satisfaction of the people under it, than the habit of 
leaving to comparatively small local communities the 
settlement of as many questions as possible. The prac- 
tice of local self-government and the love for it are not a 
centrifugal force, but rather tend to ease ofif any friction 
that may exist by giving harmless scope for independent 
action, and thus producing local contentment. It is only 
where there exist grievances fostering disruptive senti- 
ments that the existence of local bodies with a pretty 
large sphere of activity need excite discjuiet. 

It may exclude certain matters altogether from the 
competence of the central government, and thereby keep 
them out of the range of controversy. This principle 
has been wisely followed in the American and Canadian 
and Swnss Federal Constitutions as regards religion in 
its relations to the State. In some federations it has 



124 CENTRIPETAL AXD CEXTRIFUGAL FORCES 

been similarly found desirable to disable the several 
legislatures from dealing with topics likely to produce 
dissensions among the members of the federation, or 
otherwise to affect the cohesion of the nation. Thus in 
the United States no State legislature can impose any 
duties on goods brought from one State to another, nor 
in any wise interfere with commerce between the States. 

By these means a Constitution may prevent the dis- 
ruptive forces in a country from threatening the stability 
of the central government or the unity of the State. To 
remove part of the material on which they might work 
is to weaken their working, and to divert into safe chan- 
nels the political activity they would evoke. Although a 
Flexible Constitution may accomplish this, if those who 
work it respect certain fundamental principles and treat 
their querulous minorities in a conciliatory spirit, the 
work is best done, and usually has been done, by a Rigid 
Constitution, because this latter provides a guarantee 
to minorities, or to subdivisions of the country, stronger 
than they can have under an omnipotent legislature. In 
fact the existence of the grounds of contention and possi- 
bilities of disruption we have been considering is among 
the chief causes which have called Federal Governments 
and Rigid Constitutions into being. 

One further observation should be made before quit- 
ting this part of the subject. Racial differences and ani- 
mosities, which have played a large part in threatening 
the unity of States, are usually dangerous only when the 
unfriendly races occupy dififerent parts of the country. 
If they live intermixed, in tolerably equal numbers, and 
if in addition they are not of different religions, and 
speak the same tongue, the antagonism will disappear in 
a generation or two by social intercourse and especially 
by intermarriage. When the right of full legal inter- 
marriage had been established, the fusion of the patri- 
cians and the plebs at Rome began. So the Northmen 
in the tenth and eleventh centuries, so the Norman- 
French in the eleventh and twelfth centuries, became 



CENTRIPETAL AND CENTRIFUGAL FORCES 125 

blent with the Enghsh. The Magyars and Saxons, 
though generally occupying different parts of the 
country, and to some extent retaining each their own 
speech, have in Transylvania now begun to melt into 
one. It is the fact that they not only speak a different 
tongue but also profess a different faith that keeps the 
Rumans of that province apart from both Saxons and 
Magyars ; and even these differences might in time cease 
to operate did not these Rumans look across the moun- 
tains to a large Ruman State into which they would 
gladly be absorbed. But in one set of cases no fusion ' 
is possible ; and this set of cases forms the despair of the \ !\ ' S" 
statesman. It presents a problem which no Constitu- \ J 

tion has solved. It is the juxtaposition on the same soil 
of races of different colour. 

This is a recent phenomenon in history. In the an- 
cient world, almost all the barbarous tribes whom Rome 
subdued and brought into her Empire were sufficiently 
near the Italians and Hellenized Asiatics in physical 
characteristics for intermarriage to go on freely. The 
Carthaginians, who to be sure were not numerous, seem 
to have soon lost their distinctive nationality : and that 
the Jews remained distinct was their own doing, not that 
of the conquerors 1. Even as towards Egyptians and 
Numidians, who were certainly dark, one hears of little 
repulsion. Besides, both races were intelligent, and the 
former in their way highly civilized. With the African 
slave trade a new and a dolorous chapter in history 
opens. In our own time it is the settlement of Euro- 
peans in countries where the native holds his ground 
against the settler, as the Kafir does in South Africa, and 
the aboriginal Peruvians and Araucanians do in Western 
South America, or it is the influx of coloured immi- 
grants, like that of the Chinese in Western America and 
the Hawaiian Isles, that raises, or threatens to raise in 

1 In two respects the Jews under the early Empire would seem to have been 
above the average level of the civilized subjects of Rome. There was apparently 
very little slavery among them ; and there must have been an exceptionally large 
proportion of persons able to read. 



126 CENTRIPETAL AND CENTRIFUGAL FORCES 

the future, this problem in an acute form. A community 
in which there exist two or more race-elements physi- 
cally contrasted and socially unsusceptible of amalgama- 
tion cannot grow into a really united State. If the 
coloured people are excluded from political rights, there 
is created a source of weakness, possibly of danger. If 
they are admitted, there is admitted a class who cannot 
fully share the political life of the more civilized and 
probably smaller element, who will not be consoled by 
political equality for social disparagement, and who may 
lower the standard of politics by their incompetence or 
by their liability to corruption. If the people of colour 
are dispersed over the country among the Europeans, 
instead of dwelling in masses by themselves, they may 
not act as a centrifugal force, threatening secession, but 
they are a serious hindrance to the working of any form 
of popular government that has been hitherto devised, 
for they divide the population, they complicate political 
issues, they prevent the growth of a genuinely national 
opinion. 

The most noteworthy attempts that Constitutions 
have made to deal with these cases have been made in 
the United States, where the latest amendments to the 
Federal Constitution provide protection for the negroes 
and forbid the States to exclude any person from the 
electoral suffrage in respect of race or colour, and where , 
several recent State Constitutions have devised inge- , . 
nious schemes for disfranchising the vast mass of those \U 
whom these very amendments have sought to protect. \y 
So far as political rights are concerned, the problem is I 
very far from having been solved in the United States. ' 
But as regards private civil rights, it has certainly been 
an advantage to the negroes that the Federal Constitu- 
tion guarantees such rights to all citizens : and probably 
in any country where marked differences, with possible 
antagonisms, of race exist, it will be prudent to place the 
private civil rights of ever}^ class of persons under the 
equal protection of the laws, and to make the rights 



CENTRIPETAL AXD CEXTRIFUGAL FORCES 127 

themselves practically identical. It would lead me too 
far from the main subject to describe the ways in which 
similar problems have been dealt with in Algeria, in 
South Africa, and in some of the other colonies of Euro- 
pean nations. Nowhere has any quite satisfactory solu- 
tion been found ^. But the case of New Zealand deserves 
to be mentioned as one in which the experiment has 
been tried of giving parliamentary representation to the 
natives, who mostly live apart on their own reserved 
lands. So far, the results have been good. The condi- 
tions are favourable, for the Maoris are a brave and in- 
telligent race, and they are now too few in number to 
excite disquiet. 

It was the good fortune of the Roman Empire that^ 
the vast majority of the races whom it conquered and , 

absorbed had no conspicuous physical differences from / y 
the Italians which prevented intermarriage and fusion. 
Race and birthplace were no great obstacle to a man 
of force. Two or three of the Emperors were of African 
or Arab extraction. Moreover, the peoples of Southern 
Europe seem to have less repulsion of sentiment towards 
the dark-skinned races than the Teutons have. The 
Spanish and Portuguese intermarry not only with the 
native Indians of Central and Southern America, but 
also with the negroes. The French of Canada inter- 
married more freely with the Indians of North America 
than the English have done. 

Summing up, we may say that the aim of a well- 
framed Constitution will presumably be to give the 
maximum of scope to the centripetal and the minimum 
to the centrifugal forces. But this presumption is sub- 
ject to two countervailing considerations. One is that 
the energy of civic life may be better secured by giving 
ample range and sphere of play to local self-govern- 
ment, which will stimulate and train the political interest 
of the members of the State, and relieve the central au- 

1 In Algeria the electoral suffrage is limited ; but in some of the French tropical 
colonies it seems to have been granted irrespective of colour. 



12S CEXTRIPETAL AXD CEXTEIFUGAL FORCES 

thority of some onerous duties. The other is that the 
centrifugal forces may, if too closely pent up, like heated 
water in the heart of the earth, produce at untoward mo- 
ments explosions like those of a volcano. Hence it is 
well to provide, in the Constitution, such means of escape 
for the steam as can be made compatible with the general 
safety of the State. AMiere a Constitution, and espe- 
cially a Rigid Constitution, has been framed with due 
regard to these considerations, and turns to account the 
methods already discussed, it may itself become a new 
centripetal force, a factor making for the unity and co- 
herence of the community which lives under it. The 
Rigid Constitution has in this respect one advantage 
over the Flexible one, that it is more easily understood 
by the mass of the people, and more capable of coming 
to form a part of their political consciousness. When 
such a Constitution is so contrived and worked as to 
satisfy the bulk of the nation — and it will do so all the 
more if no single section dislikes it — it attracts the affec- 
tion and pride of the people, their pride because it is 
their work, their affection because they enjoy good gov- 
ernment under it. Time, if it does not weaken these 
feelings, strengthens them, because reverence comes 
with age. By providing a convenient channel or medium 
through or in which the centripetal forces may act, the 
Constitution increases the effective strength of those 
forces. It is a reservoir of energy, an accumulator, if 
the comparison be permissible, which has been charged 
by a dynamo, and will go on for some time discharging 
the energN^ stored up in it. But, like an accumulator, its 
energy becomes exhausted if there is not behind it an 
engine generating fresh power, that is to say, if the real 
social and political forces which called it into being have 
become feebler, and those which oppose it have become 
stronger. 



CENTRIPETAL AND CENTRIFUGAL FORCES 129 

V. Illustrations from Modern History of the 
Action of Constitutions. 

The best instance of the capacity of a Constitution to 
reinforce and confirm existing centripetal tendencies is 
suppHed by the history of the Rigid Constitution of the 
United States. That instrument was at first received 
with so httle favour by the people that its ratification 
was, in many States, obtained with the greatest possible 
difficulty, and the original document secured acceptance 
only on the understanding, which was loyally carried out, 
that it should forthwith receive a number of amend- 
ments. Within fifteen years the party which had advo- 
cated it was overthrown in the country, and ultimately 
broke up and vanished. A generation passed away be- 
fore it began to be generally popular. But after a time 
it secured so widespread a respect that even during the 
fierce and protracted struggle which ushered in the Civil 
War few attacked the Constitution itself, nearly all the 
combatants on one side or the other claiming that its 
provisions were really in their favour. It was not round 
the merits, but round the true construction, of the instru- 
ment that controversy raged. Since the Civil War, and 
the amendments which embodied the results of the Civil 
War, it has been glorified and extolled in all quarters ^, 
and has unquestionably been a most potent influence in 
consolidating the nation, as well as in extending the 
range and the activity of the central government. 

To what is this success due? Regarded as a Frame 
of Government, i.e. as a piece of mechanism for dis- 
tributing powers between the Executive, the Legislature 
and the Judiciary, the American system has probably 
been praised beyond its deserts. Both the mode of elect- 
ing the President and the working of Congress leave 
much to be desired. But the Constitution has had two 
conspicuous merits. It so judiciously estimated the 

' Only since 1890 have complaints begun to be made: see Essay III, p. 202, 
ante. 



130 CEXTRIPETAL AXD CEXTRIFUGAL FORCES 

centripetal and centrifugal forces as they actually stood 
at the time when it was framed, frankly recognizing the 
latter and leaving free pla)'' for them, and while throwing 
its own weight into the scale of the centripetal, doing 
this only so far as not to provoke a disjunctive reaction, 
that it succeeded in winning respect from the advocates 
both of States' Rights and of National Unity ^. Thus it 
was able to add more strength to the centripetal ten- 
dency than it could have done had it been originally 
drawn on more distinctly centripetal lines. For — and 
here comes in the second merit — its provisions defining 
the functions of the central Government were expressed 
in such wide and elastic terms as to be susceptible of 
interpretation either in a more restricted or in a more 
liberal way, i.e. so as to aUow either a less wide or a 
more wide scope of action for the Central Government. 
During the earlier years, when State sentiment was still 
stronger than National sentiment, the scope remained 
limited, because both the executive and the legislature 
wished to keep it so, and such extensions as there were 
came from judicial construction. But latterly, and espe- 
cially since the prodigious development of internal com- 
munications has stimulated commerce, and since the 
death blow given to States' Rights doctrines by the Civil 
"War. the scope has been widened, and has widened quite 
naturally and gradually, with no violence to the words of 
the Constitution, but according to that expansive inter- 
pretation of them which changing conditions and a cor- 
responding change in national sentiment prescribed ^. 

Nowadays one hears in the United States less about 
the Constitution than about the Flag 3. But that is 

1 It has been accused of having' caused a civil war by omitting' to deal ■with 
the questions out of vrhich the Civil War arose, and by failing to negative the 
right of secession. But to this it may be ans-wered that an attempt to deal with 
those questions or to negative that right might possibly have prevented it from 
having ever been accepted. 

* This interpretation has sometimes been at variance ■with the vie^ws of the 
older interpreters, but no instance occurs to me in ■which an impartial jurist could 
have pronounced it inadmissable. 

3 This is still more so to-day (1900) than it ■was -when this Essay -was first com- 
posed. 



CENTRIPETAL AND CENTRIFUGAL FORCES 131 

partly because the Constitution has done its work, and 
made the Flag the popular badge of an Unity which it 
took nearly a century to endear to the nation. 

One might go on to illustrate the efficiency of a Con- 
stitution in consolidating a people composed of dispa- 
rate elements from the parallel case of Switzerland, 
where communities speaking three (it might almost be 
said four) different languages have been brought much 
closer together by the Constitutions of 1848 and 1874 
than they were before, or could have been without some 
such arrangement. Switzerland, however, is a more 
complicated case, because much has turned on the ex- 
ternal pressure towards unity exerted by the fear felt for 
several great bordering Powers. The formidable neigh- 
bours of the Confederation have, so to speak, squeezed 
together into a Swiss people the originally dissimilar 
Alemannic, Celto-Burgundian, Italian, and Romansch 
communities. 

The two instances of the United States and Switzer- 
land 1, compared with those of unitary countries living 
under Rigid Constitutions, such as France, Belgium, 
Holland and Denmark, suggest the observation that 
the service which Rigid Constitutions may render in 
strengthening the centripetal tendency, can best be ren- 
dered where a Federation is to be constructed. For in 
these cases what is needed is an arrangement by which 
the several rights of the component communities which 
are to form the State may be so protected that they 
need not fear to give their allegiance to the State and 
cordially support its Central Government. The exist- 

1 One would like to refer to the cases of the numerous so-called republics, most 
of them federal, of Spanish America. But apart from the difficulty of ascertain- 
ing their constitutional history, little of which has been written, some of these re- 
publics seem to pay so little regard to their constitutions, living generally in a 
state of revolution, whether subsiding, or actually raging, or apprehended, like 
the Atlantic during a series of cyclones following one another along the same 
track from the Bermudas to the Fastnet, that it is hard to draw any conclusions 
of value from them. They are in fact republics only in name : and it is surprising 
that Sir H. Maine in \)\% Pop^ilar Government condescended to go to them for 
arguments to discredit democracy. They are military tyrannies, the product of 
peculiar historical, territorial and racial conditions. 



132 CENTRIPETAL AND CENTRIFUGAL FORCES 

ence of such communities is an expression of forces 
actually operative which are centrifugal as towards the 
State as a whole, and therefore need to be studied. By 
giving a carefully limited scope to these forces, and 
thereby diminishing their possibilities of danger, the 
Constitution subserves the cohesion of the States. In a 
truly unitary country this service is not needed. But 
there are cases in which States endeavouring to become 
unitary would have done better had they sought to apply 
the federal principle, placing it under the protection of 
a Rigid Constitution. I have already referred to Den- 
mark. Holland might probably have saved Belgium 
by a concession of some such kind. Whether a similar 
contrivance might not have been profitably employed 
within the British Isles in a.d. 1782, or in a.d. 1800, or 
again later, is a question which will already have pre- 
sented itself to one who has followed the argument thus 
far. 

In dwelling upon the services which Constitutions 
may render, by fostering the centripetal forces, or by 
restraining the violence and softening the action of the 
centrifugal forces, we must not forget that no scheme of 
government can hope permanently to resist the action 
of either tendency if either develops much greater 
strength than it possessed when the Constitution was 
framed. If the centripetal forces grow, the Constitution 
whose provisions have recognized and given scope to 
the centrifugal will be practically, in some of those pro- 
visions, superseded. If the centrifugal grow, it may be 
overthrown. It is where the forces are nearly balanced, 
that the weight of the Constitution may turn the scale, 
and avert conflicts which would have rent the commu- 
nity, or caused a violent subjection of one part of it to 
the other. And in any case the Constitution ought, 
where dissimilative and disruptive forces are feared, to 
be so drawn as to enlist all available motives of interest, 
to shelter the law behind popular sentiment where pos- 
sible, to ofJpose it to sentiment as little as possible, and 



CENTRIPETAL AND CENTRIFUGAL FORCES 133 

to avoid challenging at the same time the hostility of 
several kinds of sentiment. 

VI. The Probable Action of the Aggregative and 
THE Disjunctive Tendencies in the Future. 

Whether in the long run it is the centripetal or the 
centrifugal force that will prevail in politics, or, in other 
words, whether large States or small States are more 
likely to commend themselves to mankind, is a question 
which belongs rather to history than to the doctrines of 
constitutions, and which could be adequately discussed 
only after a long investigation. History shows us first 
one force dominant, then the other, though no doubt 
the centrifugal is usually more powerful in rude times 
and in hilly or mountainous countries, the centripetal 
in countries comparatively advanced in civilization, and 
in level and fertile regions where wealth is more easily 
acquired and stored, and where military operations are 
easier. When the mists of antiquity begin to rise suffi- 
ciently to show us the Mediterranean and south-west 
Asiatic world, we discover both a few great States and a 
multitude of small ones. The former have a low, the 
latter a high and intense political vitality. From the 
time of Menes down to that of Attila the tendency is 
generally towards aggregation : and the history of the 
ancient nations shows us, not only an enormous number 
of petty monarchies and republics swallowed up in the 
Empire of Rome, but that empire itself far more highly 
centralized than any preceding one had been. When the 
Roman dominion began to break up the process was 
reversed, and for seven hundred years or more the cen- 
trifugal forces had it their own way. Europe and West- 
ern Asia were divided up among innumerable petty po- 
tentates, and even the large monarchies, such as the two 
Khalifates, the Romano-Germanic Empire, the king- 
doms of France and Hungary, possessed so feeble a 
royal authority that the real organs of goverAnent and 



134 CENTRIPETAL AND CENTRIFUGAL FORCES 

centres of attraction were to be sought rather in the 
vassals than in the nominal sovereign. From the thir- 
teenth century onwards the tide begins to set the other 
way. One great State indeed — the Empire — first decays 
and then disappears under the action of centrifugal 
forces, but all the other chief States expand, absorbing 
their smaller neighbours, and giving themselves a com- 
pact and well-knit organization which makes the central 
power effective through the whole sphere of its action. 
This process culminates in the despotic monarchies of 
the eighteenth century, when the strength of feudal lo- 
calism has been completely broken, though the pic- 
turesque relics of it still cumber the ground, and when 
at the same time the foundations are laid in the West of 
a gigantic State which proceeds to cover the temperate 
area of North America between the two oceans, and, in 
the East, of the dominion of a European nation which 
has absorbed the numerous and populous principalities 
of India. Immediately afterwards the doctrine of popu- 
lar self-government and the doctrine of nationalities 
come upon the scene, threatening a disruption of some 
existing political aggregates. In point of fact, how- 
ever, these new principles have done as much to unite 
as to sever, for though five States — Greece, Rumania, 
Servia, Montenegro and Bulgaria — have been cut off 
from an effete monarchy, and sixteen republics have 
been carved out of the American dominions of Spain 
and Portugal, the doctrine of nationality has substi- 
tuted two new great States, more important than all 
the last-mentioned twenty-one put together, for the 
multitude of kingdoms and principalities which so late 
as 1859 filled Italy and Germany. 

Thus neither Democracy nor the principle of Nation- 
alities has, on the balance of cases, operated to check 
the general movement towards aggregation which 
marks the last six centuries. 

It may, however, be said — and this question should 
be faced before we proceed to inquire whether the aggre- 



CENTRIPETAL AXD CENTRIFUGAL FORCES 135 

gative movement is likely to continue — that in all this 
inquiry we have been ignoring two potent factors. One 
is Conquest — that is to say, military power. We have 
been examining the forces of Interest and Sympathy, 
which cover a number of influences social or economic, 
racial or sentimental. But after all it is Conquest, i.e. 
tli^-might of the strongest, which has created most 
States^as we find them. Is Conquest one of the centripe- 
tal forces ?~and if so, is it not the greatest of them? 

The other factor is Family Succession, which both 
during the Middle Ages and since has done a great deal 
to consolidate principalities and kingdoms. The United 
Kingdom owes much to this agency, Austria and France 
even more. 

Conquest and Dynastic Succession are hardly fit to 
be classed among the centripetal forces, because they are 
not susceptible of scientific treatment like the other in- 
fluences. The disposition of the stronger to subdue and 
anne^the weaker neighbour is of course a permanent 
fact, in human nature, and therefore in history. But in 
each particular instance the success of one or other com- 
batant depends on what may be called historical acci- 
dents — on the numbers or the discipline of troops, on the 
possession of a commander of military genius, on alli- 
ances with other states, on the internal dissensions of one 
state as compared with the unity of another. Physical 
force belongs to a different sphere from that in which po- 
litical constitutions work. Constitutions may result from 
a conquest or may be maintained for a time by arms ; but 
if they are obliged to rely on and have constant recourse 
to physical force in order to prevent their overthrow, 
they are, considered as Constitutions, failures; because 
the very nature and object of a constitutional Frame of 
Government is so to express and so to adjust to existing 
conditions the wishes and aims of the citizens as to make 
the majority, and if possible the vast majority, of the 
people desire to support it. According to the proverb, 
you can do anything with bayonets except sit down on 



136 CENTRIPETAL AND CENTRIFUGAL FORCES 

them. Physical force is of course needed to punish oc- 
casional infractions of the Constitution or to quell re- 
volts against it. But the system of government which 
ex hypothcsi corresponds to the permanently strongest 
among the moral forces, else it has no right to prevail in 
a free country, ought not to be surrounded by cannon. 

Similarly, the devolution of princedoms or kingdoms 
by marriage and inheritance, much as it has done to 
bring States originally independent under one govern- 
ment, lies outside political science in the proper sense 
of the term. Like conquest, it brings about a new state 
of things by an event with which the ordinary political 
and constitutional phenomena of national life have 
nothing to do, coming into these phenomena as an in- 
commensurable and (so to speak) irrational factor i. 

So soon as either conquest or a union due to here- 
ditary succession has taken place, the normal centri- 
petal and centrifugal tendencies resume their action. 
Where the territory of one people has been forcibly 
acquired by another, as Lombardy was acquired by 
Austria in 1815, or has been occupied in virtue of a title 
based on succession, as Portugal was claimed by Spain 
in 1580, such centripetal forces as may exist have the ad- 
vantage of physical force behind them. But this advan- 
tage may be unavailing against the stronger forces 
which sentiment sends forth to dissever the connexion. 
Austria lost Lombardy after forty-four years ; Spain lost 
Portugal after sixty. In both cases there was fighting, 
but it was not so much the balance of military strength 
as the settled hostility of the subjected people which in 
both caused the severance. So the acquisition by the 
English kings of Aquitaine and the subsequent conquest 

1 The fact that the custom of a country permits or forbids succession through 
females makes a great difference in the importance of succession. The union of 
Castile with Aragon, like the union of England with Scotland, would not have oc- 
curred under a different rule of succession. So it may make a difference whether 
the throne of the larger country passes to the dynasty of the smaller, or vice versa. 
Had a king of England inherited the throne of Scotland, Scotland might have 
been more hostile to England. Had a king of Portugal inherited the throne of 
Spain, the two countries might have remained united. 
17 



CENTRIPETAL AND CENTRIFUGAL FORCES 137 

of large part of France, the conquest by the Turks of 
Transylvania, the union of Holstein with Denmark, the 
union of Belgium with Holland, the union of Alsace with 
France, all efifected without regard to the will of the 
people, were all in time brought to an end. The last- 
mentioned case is a peculiar one. It was not because 
the Alsatians wished to be reunited to Germany, but be- 
cause the Germans wished to be reunited to Alsace that 
a connexion which had lasted nearly two centuries was 
dissolved in 1871. Military motives, decisive as regards 
the annexed part of Lorraine, had something to do with 
the taking of Alsace also ; but if Alsace had not been 
German in language and habits, though not in sentiment, 
the popular voice of Germany would not have insisted on 
recovering it against the will of its inhabitants. 

Speaking broadly, one may say that Conquest and 
Inheritance give an opportunity, better in the latter than 
in the former case, for centripetal forces to work. If 
the peoples on which they operate are backward, with 
no pronounced national feeling, that chance may be a 
good one, and the influences of free commerce, joint 
government (especially if it is good government), to- 
gether with the kind of pride which common service in 
war often produces, may operate to weld two peoples 
together into a united State. Much depends on lan- 
guage, much on geographical position, much on exter- 
nal pressure from powerful neighbours. But if one of 
the peoples (or both) has already developed a strong 
sentiment of nationality, the prospect of fusion is but 
slender. 

The Roman Empire is the capital instance of a vast 
dominion established by conquest. But there it was the 
weakness of the centrifugal forces that secured the co- 
hesion of the Empire. The conquered countries were 
either, like Gaul, Spain and Britain, occupied by tribes 
between whom there existed so weak a bond that no 
general national feeling or combined national action was 
possible, or had been, as in the Eastern Mediterranean 



138 CENTRIPETAL AXD CEXTRIFUGAL FORCES 

World, ruled by dynasties, most of them sprung from 
military adventurers ^, so that the sentiment of national 
life had not centred in the monarchy. The centrifugal 
forces of interest — the desire for peace, good govern- 
ment, facilities for commerce, and so forth — obtained 
free play under the imperial administration, and to these 
was added after a time the sense of pride in Roman citi- 
zenship, and in the greatness of a State which included 
all the highest civilization of the world. So too during 
the Middle Ages not a few conquests ended in an assimi- 
lation of the vanquished, which enlarged without weak- 
ening the conquering nation. But during the last three 
centuries the experience of military powers has been 
that the acquisition of masses of subjects who, being al- 
ready civilized, are likely to resist absorption and to re- 
main disaffected, is a doubtful gain and may become a 
danger to the conquering State. The last conspicuous 
instance is Poland, partitioned between three Powers, 
to all of whom her provinces have brought trouble. 
Conquests continue to be made, but they are now mostly 
of barbarous or semi-civilized races, so inferior to the 
conquerors in force and in national spirit that the centri- 
fugal forces are, or at least seem to be, practically 
negligible. 

Is it possible, then, to arrive at any conclusion regard- 
ing the respective strength which these two sets of 
forces are likely to display in the coming centuries ? 
"Will the tendency to aggregation continue, and does the 
future belong to great States ? Or may new forces ap- 
pear which will reverse the process, as it was reversed, 
though through causes most unlikely to reappear, at the 
fall of the Roman Empire ? 

At first sight the probabilities seem to point to fur- 
ther aggregation. Although none of the five great na- 

1 There were of course also a certain number of citj- republics, or leagues of re- 
publics, but these were too small to have developed national feeling in the modern 
sense ; and the Roman system left most of them a certain measure of self-govern- 
ment which modified their regret for an independence the delight in which had 
been (in many cases) reduced by domestic disorders. 



CENTRIPETAL AND CENTRIFUGAL FORCES 139 

tioiial States — Russia, Germany, France, Italy, Britain 
— is in the least likely to be absorbed by any of the 
others, there is reason to think that within the next cen- 
tury some of the smaller states will have disappeared 
from the map of Europe. In one or two other parts of 
the world — as for instance in South and in Central Amer- 
ica — the process by which the great States are expand- 
ing is not yet complete. The influences of swifter and 
cheaper communications by land and sea, of increasing 
commerce, and of the closer intercourse which com- 
merce brings, of the power exerted by the printing press 
in extinguishing the languages which prevail over a 
small area and diffusing those spoken by vast masses of 
men — all these things make for unity within each of the 
great States and add to the attractive power which the 
greater have for the smaller. These influences, more- 
over, all promise to be permanent. 

Against them we must set the fact that Conquest, so 
far as civilized peoples are concerned, seems likely to 
play a smaller role in the future than in the past, because 
it begins to be perceived how tenacious is the sentiment 
of nationality in a vanquished people, and how much the 
maintenance of that sentiment may endanger the victor 
State. As was observed in an earlier page, the progress 
of' a community in civilization often tends to intensify 
both its capacity for political discontent and its peculiar 
national sentiment, thus counterworking the influences 
of trade and wealth. A people, or a nationality included 
in a large State, while feeling the centripetal forces of 
material interest, may nevertheless feel the repellent 
instinct of an unquenched attachment to its national tra- 
ditions and cling to the hope of reviving its old national 
Hfe. 

The problem is, however, a far more complex one than 
any comparison of the influences of material interest on 
the one side and national sentiment on the other would 
suggest. Many phenomena may be imagined which 
would afifect it as the world moves on. One is a change 



140 CENTRIPETAL J.XZ) CEXTEIFUGAL FORCES 

in the conditions under which war is waged. Another 
is a removal of some of the causes which induce war, or 
a means, better than now exists, of averting its out- 
break. Another is the growth of what is called Collec- 
tivism and a disposition to apply its principles in small 
rather than in large areas, seeing that there are obvi- 
ously some things which can be better managed in the 
former. We are far from having exhausted the possi- 
bilities of the influence of scientific discovery upon eco- 
nomic life, and through it upon social and political life. 
Both the relations of Nations and States to one another 
and the relations of the groups or communities within 
each State to each other may be affected in ways as yet 
scarcely dreamt of. Neither can we foresee the modes 
in which the scientific way of looking at all questions 
may come ultimately to tinge and modify men's habits of 
thought even in social and political matters. No institu- 
tion was at one time more generally prevalent over the 
world, or seemed more deeply rooted, than Slavery ; and 
slavery, which has now vanished from civilized com- 
munities, will soon have vanished from all countries. 
There is inde^ed hardly any institution for which perma- 
nance can be predicted except — and some will not admit 
even this exception — the Family. 

Imagine a world in which all the hitherto unappropri- 
ated territories had been allotted to one or other of the 
few strongest States. Imagine tariffs abolished and the 
principle of equality of trade-facilities among States es- 
tablished. Imagine a system of international arbitra- 
tion created under which the risks of war were so greatly 
reduced that the prospects of war did not occupy men's ' 
minds and give a military and aggressive tinge to theiij 
patriotism. The present relations of centripetal ana 
centrifugal forces would under such conditions be 
greatly altered, as respects both the wide theatre of the 
world and the internal conditions of each particular 
State. 

Imagine also a great advance in the desire to use gov- 



CEIfTRIPETAL AND CENTRIFUGAL FORCEPS 141 

ernmental agencies for the benefit of the citizens, and a 
general conviction that such agencies could best be used 
by comparatively small communities rather than by the 
State as a whole. A new centrifugal force, centrifugal 
at least in respect of each State, would thereby have been 
called into action. No one will venture to foretell any of 
these things. But none of them is impossible ; and it is 
plain that they might produce a set of conditions, and a 
play of forces, unlike the present, and unlike any period 
in the past. We must not therefore assume that the 
large States and the present structure and organization 
of States will be permanent. 

Of the more remote future, History can venture to say 
little more than this — that it will never bring back tlie 
past. She recognizes that, as Heraclitus says, one can- 
not step twice into the same river. Even when she is 
able to declare that certain forces will assuredly be pre- 
sent, she cannot forecast their relative strength at any 
given moment, nor say what hitherto unobserved forces 
they may not, in their action upon one another, call into 
activity. All she can do for the lawyer, the statesman 
and the legislator, when they have to study and use the 
forces operative in their own time, is to indicate to them 
the nature and the character, the significant elements of 
strength and weakness, that belong to each and every 
force that has been heretofore conspicuous, so as to 
direct and guide them in observing and reflecting on the 
present. This is much less than has sometimes been 
claimed for history. Nevertheless it is a real service, 
for nothing is more difficult than to observe exactly, and 
the ripest fruit of historical study is that detachment of 
mind, created by the habit of scientific thinking, which 
prevents observation from being coloured by prejudice 
or passion. 



V 
PRIMITIVE ICELAND 

Iceland is known to most men as a land of volcanoes, 
geysers and glaciers. But it ought to be no less inter- 
esting to the student of history as the birthplace of a 
brilliant literature in poetry and prose, and as the home 
of a people who have maintained for many centuries a 
high level of intellectual cultivation. It is an almost 
unique instance of a community whose culture and crea- 
tive power flourished independently of any favouring 
material conditions, and indeed under conditions in the 
highest degree unfavourable. Nor ought it to be less 
interesting to the student of politics and laws as having 
produced a Constitution unlike any other whereof re- 
cords remain, and a body of law so elaborate and com- 
plex that it is hard to believe that it existed among men 
whose chief occupation was to kill one another. 

With the exception of Madeira and the Azores, Ice- 
land is the only part of what we call the Old World ^ 
which was never occupied by a prehistoric race, and in 
which, therefore, the racial origin of the population is 
historically known to us. 

None of those rude tribes who dwell scattered over 
the north of Asia, Europe and America — Lapps, Samoy- 
edes or Esquimaux — ever set foot in it. Adamnan, 
Abbot of lona from a. d. 679 to 704, reports in his famous 

1 Though geographically Iceland belongs rather to North America than to 
Europe, geologically its affinities are with the Cape Verde Islands, the Canaries, 
Madeira, and possibly the Azores to the South, with Jan Mayen to the North, as 
it seems to owe its origin to a line of volcanic action stretching from the Cape 
Verde Islands to far beyond the Arctic Circle. 



PRIMITIVE ICELAND 143 

Life of St. Coliimha'^, a prophecy of the saint regarding 
a holy man named Kormak, who, in Cohmiba's days 
(a.d. 521-597), made three long voyages from Ireland iii 
search of the ' Desert in the Ocean ' (eremum in Oceano), 
a term so happily descriptive of Iceland that one is 
tempted to believe it to be the region referred to. A 
little later the Venerable Bede (a.d. 673-735) speaks of 
contemporaries of his own who, coming from the isle of 
Thule, declared that in it the sun could be seen at mid- 
night for a few days ^. Still later the Irish monk Dicuil 
(writing about a. d. 825) tells ^ of an isle lying far to the 
North-West where monks known to him had spent the 
summer some thirty years before. And our earliest Ice- 
landic authority, the famous Landndmabok (Book of the 
Land-takings), mentions that when the first Norwegian 
settlers arrived they found a few hermits of Irish race al- 
ready established there, who soon vanished from the 
presence of the stronger heathen, leaving behind books, 
bells and staves (probably croziers). The Norse settlers 
called them Papas (i.e. priests), or Westmen, a term used 
to describe the Scots of Ireland. No doubt, then, the 
earliest discoverers of the isle were these Celtic hermits, 
who had crossed the wide and stormy sea in their light 
coracles of wood and leather, consecrating themselves 
to prayer and fasting in this inclement wilderness. But 
they contributed no element to the population of the 
island, and can hardly be said to have a place in its 
history, which begins with the great Norwegian 
immigration. 

The first Teuton to reach Iceland was a Norse Viking 
named NaddoS, who was driven to the isle by a storm in 

1 Vita S. Columbae, cap. vi. 

2 Comment, on 2 Kings xx. 9. The extreme northernmost point of Iceland just 
touches the Arctic Circle. 

3 In his book De Mensura Orbis Terrae. cap. 7, he identifies the isle with Thule; 
and the reports of the monks point rather to Iceland than to the Faeroe Isles, a 
group which Dicuil mentions elsewhere, and which therefore he cannot mean by 
his Thule. The name Thule has of course been applied by different writers to 
different lands. When Tacitus says that it was seen in the distance by the fleet of 
Agricola, he p-obably means either Shetland or the Fair Isle between the Shet 
lands and the Orkneys. 



144 PRIMITIVE ICELAND 

the latter half of the ninth century. He called it Snse- 
land, or Snowland. A second visitor, a Swede named 
Gardar, sailed round it ; a third (Floki, a Norseman) 
landed, and gave it the name it still bears. But though 
the news of the discovery soon spread far and wide 
through the whole Northland, the isle might possibly 
have lain unoccupied but for the events that were passing 
in Norway. King Harald the Fairhaired was then in 
the full career of his conquests. The great battle of 
Hafrsfjord had established his power in Central and 
Southern Norway, and he was traversing the fjords with 
his fleet, compelling the petty chieftains who stood at 
the head of the numerous small independent communi- 
ties that filled the country to acknowledge his supremacy, 
and imposing a tax upon the land-holding freemen. 

The proud spirit of the warriors who for more than a 
century had been ravaging the coasts of all Western 
Europe could not brook subjection, and, being unable 
to offer a united opposition, the boldest and bravest 
among them resolved to find freedom in exile. Some 
sought the Orkneys, Shetlands and Faeroe isles, already 
settled by Northmen. Some joined the Norwegian set- 
tlers in Ireland, and drove the Celtic population out of 
some districts on its eastern coast. Others, again, fol- 
lowed Hrolf Ganger (Gongu Hrolfr) (' the Walker '), 
or RoUo as our books call him, a Viking who, having in- 
curred the wrath of Harald, sailed forth from his home 
on the fjords near Bergen to found in Northern Gaul a 
dynasty of Norsemen whence came the long line of Nor- 
man dukes and English kings, Albanique patres atque altae 
moenia Romae. And yet others, hearing the praises of the 
lately-discovered isle far olT in the ocean, turned their 
prows to the west and landed on the solitary shores of 
Iceland. They embarked without any concert or com- 
mon plan ; each chieftain, or head of a household, taking 
his own family, and perhaps a group of friends or de- 
pendents ; and they settled in the new land where they 
pleased, sometimes throwing overboard as they neared 



PRIMITIVE ICELAND 145 

the shore the wooden columns, adorned with figures of 
Thor and 06in, of the high-seat in their old Norwegian 
hall, and disembarking at the point to which these were 
driven by the winds and currents. At first each took fori 
himself as much land as he desired, but those who came| 
later, when the better pastures had been already occu-^; 
pied, were obliged to buy land or to fight for it ; and aj 
curious custom grew up by which the extent of territory, 
to which a settler was entitled was fixed. A man could 
claim no more than what he could carry fire round in a 
single day ; a woman, than that round which she could 
lead a two-year-old heifer. So rapid was the immigra- 
tion, many colonists from Norwegian Ireland and the 
Scottish isles, Orkneys, Shetlands and Hebrides (the 
two former groups being then Scandinavian) joining 
those who came direct from Norway, that in sixty years 
the population had risen (so far as our data enable it to 
be estimated) to about 50,000, a number which seems 
not to have been exceeded down to the census of a.d. 
1823. With those who came from Ireland and the Hebri- 
des there came some small infusion of Celtic blood, 
which we note in such names as Njal, Kjartan, and Kor- 
mak, given to men descended from the daughters of 
Irish chieftains. 

Planting themselves in this irregular way, and in a 
country where the good land lay in scattered patches, 
and where deserts, glaciers and morasses, as well as tor- 
rents, passable only with difficulty or even danger, cut 
off one settlement from another, the first settlers did not 
create, and indeed felt little need of, any political or social 
organization. But after a time a sort of polity began to 
shape itself, and the process of its growth is one of the 
most interesting phenomena of mediaeval history. Thei 
elements out of which it sprang were of course those two 
which the settlers had brought with them from Norway,, 
and both of which were part of the common heritage ofj 
the Teutonic race — the habit of joint worship at a temple, 
and the habit of holding an assembly of all freemen to; 



146 PRIMITITE ICELAND 

discuss and dispatch matters of common interest, and 
more especially lawsuits ^. This assembly resembled the' 
Old Enghsh Folk Mot, and was called the Thing, a name' 
which survives in our English word Hustings (Husting 
or House Thing), the platform from whence candidates 
spoke at parliamentary elections, which disappeared in 
A.D. 1872 when written nominations were prescribed by 
the statute which introduced vote by ballot. The ping ^ 
was held at the temple, usually dedicated to Thor, the 
favourite deity of the Norsemen as OSin was of the 
Swedes ; since the place of worship was the natural centre 
of the neighbourhood, and the ping was presided over 
by the local magnate or chief, who was usually also the 
owner or guardian of the local temple, there being 
among the Scandinavian peoples no special sacerdotal 
caste. 

Now when a Norse chief settled himself in Iceland, 
one of his first acts was to erect a temple, often with the 
sacred pillars which he had brought from the ancestral 
temple in the old country. The temple soon became a 
place of resort, not only for his own immediate depen- 
dents, but also for those other settlers of the district who 
might not be rich enough to build and maintain a shrine 
of their own. Of this temple the chieftain and his de- 
scendants were the priests ; and as the meetings of the 
Icxcal ping were held in it, he was the natural person to 
preside over such meetings, both because he was usually 
(though not invariably) eminent by his wealth and power, 
and also because he offered the sacrifices and kept the 
sacred temple-ring on which judicial oaths were taken, 
as at Rome men swore at the Ara Maxima of Hercules. 
Thus the priest acquired, if he had not already enjoyed it, 
the position of a sort of local chieftain or magnate, not 
unlike those kings of heroic Greece whom we read of in 

1 Not but what the habit of holding- such an assembly has existed among- peo- 
ples of very diverse race in many parts of the -world. It existed among the Greeks. 
It exists among the Kafirs of South Africa. 

2 I use the Icelandic and Anglo-Saxon letter ]> in this word to distinguish it from 
the common English word. 



PBIMITIYE ICELAND 147 

Homer, or those German tribe-princes whom Tacitus 
describes. Although his title was that of Go5i ^ (origi- 
nally Gu6i) or priest, a word derived from the name of 
the Deity, he lost in becoming the depositary of a cer- 
tain measure of political power most of such religious 
character as his office had possessed. Nor did any sanc- 
tity attach to his person. In that age at least religion 
had come to sit rather lightly upon the Norsemen. 
Either from inner decay, or from the influence of the 
Christian peoples with whom they came in contact be- 
yond the seas, the old faith was beginning to disinte- 
grate. Worship was often cold or careless, and we read 
of men who regarded neither por nor 06in, but trusted 
in their own might and main. 

The Go6i was therefore much more of a secular than 
of an ecclesiastical person, a chieftain rather than a priest 
in our sense of the word ^. His powers as a chieftain 
were very indefinite, as indeed had been those of the local 
chieftains of Norway. He was only the first among a 
number of free and warlike land-owners, some of them 
equal or superior to him in lineage, with an official dig- 
nity which was little more than formal in the hands of a 
weak man, but might be turned to great account by a 
person of vigour and ability. As he presided in the 
ping, so he was the appropriate person to see to the regu- 
larity of its judicial proceedings, to preserve order, and 
to provide for the carrying out of any measures of com- 
mon concern on which it might determine. When any 
unforeseen danger or difficulty arose, he was looked to to 
advise or take the lead in action ; the members of his 
ping expected aid and protection from him, while he, 
like a thegn among the Teutons of contemporary Eng- 
land, expected support and deference from them. But 
he had no legal powers of coercion. Any one might op- 

- The term gd^i does not seem to have been used in Norway, but Ulfila, in his 
translation of che Bible into Gothic (in the fourth century a. d.), renders lepevq by 
gudja. The o is pronounced like th in ' then.' 

* It is true that as the Sagfas whence we draw our knowledgfe of the GotSi were 
all written down at a time when heathenism had vanished, it is possible that they 
may not fully represent the original character of the office. 



148 PRIMITIVE ICELAND 

pose him in the ping or ovit of it. Any ping-man might 
withdraw at pleasure, join himseh' to some other Go8i, 
and become a member of some other ping ^. There was, 
it must be noted, no territorial circumscription corre- 
sponding to the ping. Land had nothing to do with the 
position held by the GoQi to the pingmen, and herein, as 
well as in the absence of the relation of commendation 
and homage, we see a capital difference between this sys- 
tem and feudality. Nor was the post of GoSi a place 
whence much emolument could be drawn. The ping- 
men were indeed required to pay a sort of tax called the 
temple toll {hoftollr), but this did no more than meet the 
expenses to which the Go5i was put in keeping up the 
temple, and feasting those who came to the sacrifices ; 
it gave him no revenue which he could use to extend his 
authority. Accordingly, the Go6or6 was regarded as 
implying power rather than property, and was not (after 
the introduction of Christianity) liable to the payment of 
tithe. A curious feature of the office was its alienability. 
Probably because it had arisen out of the ownership of 
the temple, it was regarded as a piece of private pro- 
perty which could be transferred by way of sale or gift, 
and could be vested in several persons jointly. And 
similarly a number of GoSorSs might by inheritance or 
purchase become vested in the same person. 

Thus in the years immediately following the immigra- 
tion there sprang, up round the coasts of Iceland a great 
number of petty, unconnected and loosely aggregated 
groups of settlers. We must not venture to call them 
states, scarcely even communities, not principalities, 

1 The illustrious Konrad Maurer, to whose learned researches and sound judg-e- 
ment every one who writes about the constitutional antiquities of Iceland must 
feel infinitely indebted, thinks that the name of GoSi was used in Norway before 
the emigration to Iceland, though probably the priest was there a less important 
person than he became in Iceland, where his custody of the temple put him to 
some extent in the position held in the Norwegian motherland by the hereditary 
chieftain, who was in Norway the natural president of the local Thing. 

Those who desire to study the early history of Iceland may be referred to the 
writings of Dr. Maurer, and especially to his Island Bis zuvi Untergange des Frei- 
staats (Munich, 1874), and his Beitrage zur Rechtsgeschichte des Germaniscken 
Nordens (Munich, 1852). 



PRIMITIYE ICELAND 149 

such as those which were beginning to spring up in 
Western Europe, not in a strict sense republics, yet 
nearer to repubhcs than to principaHties, organized, so 
far as they were organized at all, chiefly for the purposes 
of justice, and particularly for the exaction of fines for 
homicide, but with no settled plan of government, no 
written laws — if indeed writing was yet in use at all — 
no defined territory, and a comparatively weak cohesion 
among their own members, the Thingmen. The really 
effective tie was, in those ages, the tie of kindred ; and 
the pingmen of the same Gobi were not kinsfolk, were 
not a clan or sept, like the Celtic communities of Scotland 
and Ireland. That tie was strong enough to involve a 
whole district in the blood-feud of a single man. For 
when any member of a family was killed, it was the duty 
of his nearest relatives to avenge his death, either by 
obtaining a full compensation in money, for which, if the 
offender refused to pay it, a lawsuit was brought in the 
ping, or else by slaying the murderer or some member 
of his family. Thus a feud, like a Vendetta in Corsica or 
in Eastern Kentucky, might go on from generation to 
generation, each act of revenge drawing others in its 
train, and tending to draw more and more families into 
the feud, because when fights took place, the friends of 
each party often joined, and if some were killed, their 
relatives had a new blood-claim to prosecute. 

Between the different communities that had thus 
sprung up there was no political tie whatever. There 
did not as yet exist any Icelandic nation, much less any 
common Icelandic State of which all the communities 
felt themselves members. Each was an independent 
body ; and if a dispute arose between the members of 
two different pings, there was no means of adjusting 
it except by voluntary submission to the award of some 
other ping or else by open war. Seeing that slayings and 
plunderings and burnings were everyday occurrences in 
this fierce race, where Vikingry {i.e. piracy) was the most 
honoured pursuit, such cases were very frequent, espe- 



150 PRIMITITE ICELAND 

cially as to take revenge for a kinsman's death was 
deemed a sacred dut}-. 

Even when the offender belonged to the same ping 
as the injured, it often happened that the influence of 
his kindred, or the favour of the Go5i of the place, or 
some technical error in bringing the suit for compensa- 
tion, prevented justice from being done. Accordingly 
the need for some remedy, for some further political, or 
rather judicial, organization of the island began to be 
generally felt, for however fond men may be of killing 
one another, the Norsemen were always also fond of 
money, and would often prefer a blood-fine to the satis- 
faction of killing their enemy, could the blood-fine be 
secured. Thus it came to pass that, about fifty years 
after the first colonization, a chief named Ulfljot, venera- 
ble from his age and abilities, came forward to propose 
a scheme. He urged the creation of one general ping 
for the whole country, where all matters of common in- 
terest might be discussed, and all suits which could not 
be dispatched, or had not been fairly dealt with in the 
local pings, might be decided. Travelling round the 
island, he brought over to his views the most influential 
GoSis and other leading men; and at their request, sailed 
to Norway to inquire into the laws prevailing there, and 
to draw up regulations for this new general ping; some- 
what as envoys were, according to the Roman story, 
sent from Rome to the Greek cities to bring back ma- 
terials and suggestions for the legislation of the Decem- 
virs. At the same time tJlfljot's foster-brother. Grim 
Geitskor (' Goat's Shoe '), the fleetest man and nimblest 
rock-climber in Iceland, was commissioned to traverse 
the island in search of a place suitable for the meeting of 
the proposed assembly. After long wanderings, Goat's 
Shoe hit upon a spot to which the name of ping Vellir ^, 
' the plains of the ping,' has ever since belonged, in 

I Thing- Vellir is the nominative plural, Thing- Valla — the form in -which the 
•word has become more familiar to Englishmen, and which remains in Thing-wall 
(near Liverpool), Tyn-wald (in the Isle of Man), and Dingwall (in Rosshire)— is the 
genitive plural. 



PRIMITIVE ICELAND 151 

the south-west of the island, about eight hours' riding 
from where Reykjavik the present capital now stands, 
and within the district of the first temple that had been 
founded by Ingolf, the earliest Norwegian settler. This 
circumstance gave the place a sort of sacredness. There 
was plenty of water and pasture, and the lake which 
washed the plain of meeting abounded (as it does to this 
day) with trout and wild fowl. (It abounds also with 
most pernicious small black flies, whereon the trout 
grow fat, but which make fishing not always a pleasure.) 
Here, accordingly, tJlfljot having in the meantime re- 
turned from Norway with his materials for legislation, 
the first Aljnng, or General Assembly of all Iceland, met 
in A.D. 930, and here it continued to meet, year after year, 
for a fortnight in the latter half of June, till the year 
1800^, one of the oldest national assemblies in the civi- 
lized world, and one of the very few which did not, like 
the English Parliament and the Diet of the Romano- 
Germanic Empire, grow up imperceptibly and, so to 
speak, naturally, from small beginnings, but was formally 
and of set purpose established, by what would have been 
called, had paper existed, a paper constitution, that is to 
say by the deliberate agreement of independent groups 
of men, seeking to attain the common ends of order and 
justice. 

^There was thus created, before the middle of the tenth 
century, when Athelstan the Victorious - was reigning 
in England and defeating Scots and Northumbrians at 
Brunanburh by the help of the Icelandic warriors Thorolf 
and Egil, sons of Skallagrim ^, when the Saxon king 
Henry the Fowler was repelling the Magyar hosts and 
laying the foundations of the German Kingdom, and 

J Since this lecture was delivered the Aiding which since 1843 had led a feeble 
life at Reykjavfk as a sort of advisory council, has been re-established as a repre- 
sentative governing assembly under a new constitution granted to Iceland in 1874. 
It now meets every second year at Reykjavik. 

* The Saga of Egil calls him ASalsteinn hinn Sigrsaeli (/zV. ' blessed with vic- 
tory '). It is curious that this title should have been preserved in Iceland and ap- 
parently have been forgotten in England. 

^ See Egils Saga Skallagrimssonar, chap. 54. 



^ 



152 PRIAIITITE ICELAXD 

when the power of the last Carolingians was beginning 
to pale in Gaul before the rising star of the Capetian line,,. 
a sort of republic embracing the whole isle of Iceland, jSl 
republic remarkable not only from its peculiar political 
structure, but also, as will presently appear, from the 
extremely limited range of its governmental activity. 
About thirty years later its constitution was amended in 
some important points, and forty years after that time, 
about the year 1004, further alterations were made, the 
details of which are too much disputed as well as too 
intricate to be explained here. Its general outline, in its 
completed shape, was the following. The total number 
of regular pings, and priest-chieftaincies or GoSorSs, 
was fixed at thirty-nine, nine for each of the four Quar- 
ters into which the island was divided, except the North 
Quarter, which, in order to allay certain local suscepti- 
bilities, was allowed twelve. Each of these thirty-nine 
local pings was presided over by its Go5i. Then, for 
certain purposes, three of these pings were united to 
form a larger ping-district (pingsokn), of which there 
were therefore thirteen in all, viz. four for the North 
Quarter, and three for each of the other Quarters. 
There was also one still larger ping for each Quarter, 
called the Fj6rbungs]nng. It seems to have grown up 
before the institution of the All'ing, and to have repre- 
sented the first stage in the organization of a larger com- 
munity out of the small local pings. But it tended in 
course of time to lose its importance. 

Ordinary lawsuits and questions of local interest were 
determined in these minor pings, while graver suits, or 
those in which the parties belonged to different pings, 
or where it was sought to reverse the decision of a local 
ping, as well as all proposals for alterations of the 
general law, were brought before the Alping, at its an- 
nual meeting in June. It seems to have been therefore 
partly a court of first instance and partly a court of ap- 
peal. Now the Al)?ing was open, like other primary 
Teutonic and Hellenic assembhes, to all freemen who 
IR 



PRIMITIVE ICELAND 153 

chose to attend ; but its powers were practically exercised 
by a limited number of persons, viz. the GoSis and cer- 
tain members nominated by them. 

For judicial purposes, the Aiding acted through four 
Courts, one for each Quarter. Each Quarter Court 
(fjorSungsdomr) consisted, according to one view, of 
thirty-six members, viz. the GoSis of the Quarter with 
twenty-four nominees, and, according to another view, 
of nine persons nominated by the GoSis of the Quarter. 
There was also a fifth Court (called the fimtardomr), in- 
stituted later than the ethers (a.d. 1004), on the sugges- 
tion of the famous jurist Njal, son of Thorgeir. This 
Court, which exercised jurisdiction in cases where one 
of the other Courts had failed, was composed in a some- 
what different way, acted under a more stringent oath, 
and gave its decisions by a majority, whereas in other 
Courts unanimity was required. It seems to have been 
intended not only to avert armed strife by providing a 
better method for settling disputes, but also to organize 
the country as a whole and give it something approach- 
ing to a central authority. This result, however, was 
not attained, the social and physical obstacles proving 
insuperable. 

In these judicial committees of the Aiding lawsuits 
were brought and argued with an elaborate formality 
and a minute adherence to technical rules far more strict 
than is now practised anywhere in Europe, a fact which 
will appear the more extraordinary when we remember 
that in those days both the law and all the appropriate 
forms of words which the parties were obliged to employ 
were not written, but preserved solely by the memory of 
individual men. 

For legislative purposes the Aljnng acted through an- 
other committee of 144 persons, only one-third (forty- 
eight) of whom, being the thirty-nine Go6is and nine no- 
minees, had the right of voting. The nine nominees 
were persons chosen by the GoSis of the East. South, and 
West Quarters, three by each Quarter, in order to give 



154 PBIJIITITE ICELAND 

each of these Quarters the same strength in the Com- 
mittee as the North Quarter had with its twelve GoSis. 
Each of the forty-eight appointed two assessors who ad- 
vised him, sitting one behind him and the other in front of 
him, so that he could readily seek their counsel, and thus 
the 144 were made up, the forty-eight being described as 
the Middle Bench. This Committee was called the Lo- 
gretta (lit. ' Law Amending "), and by it all changes in the 
law were made, and all matters of common interest dis- 
cussed. It was essentially an aristocratic body, as indeed 
the . whole Constitution bore an aristocratic colour, 
though there was no such thing as a formal distinction 
of rank 1, much less any titled nobility. After the intro- 
duction of Christianity in a.d. 1000, the two bishops were 
added to the Logretta, while at the head of all, making 
up the number of members to 147, stood an elected offi- 
cer, called the Speaker of the Law. 

This last-named personage, the solitary official of the 
republic, is one of the most curious parts of the system. 
He was called the LogsogumaSr, literally ' Law-say- 
man,' or, as we may render it. Speaker, or Declarer, of 
the Law, and was the depositary and organ of the un- 
written common law of the country. It was his duty to 
recite aloud, in the hearing of the greater number of 
those present at the ping, the whole law of Iceland, 
going through it in the three years during which he held 
office ; and to recite once in every year the formulas of 
actions, this being the part of the law which was of most 
practical importance. Besides this, he presided in the 
Logretta, giving a casting vote where the votes were 
equal ; and he was bound to answer every one who asked 
him what the provisions of the law actually were, al- 
though not required to advise applicants as to the course 
they ought to follow in a given case. When in any suit 
a question of what was the legal rule arose, reference 
was made to him, and his decision was accepted as final. 

1 Although the penalty for killing- a man of hig-h lineage was heavier than that 
for an ordinary freeman ; and one perceives from the Sagas how carefully genea- 
logies were preserved and what great respect was paid to long descent. 



PRIMITIYE ICELAND 155 

For these labours he received a yearly salary of two hun- 
dred ells of VaSmal (the blue woolen cloth which then 
served as currency, and which continued to do so, for 
some purposes, down to our own time), besides one-half 
of the fines imposed at the Alping. He was of course 
selected from the most accomplished lawyers of the time. 
His declarations of the law were conclusive, at least dur- 
ing his three years' term of ofhce, in all causes and over 
all persons. Thus he exercised a kind of quasi-judicial 
or quasi-legislative power, and has been fancifully com- 
pared to the Roman Praetor, also an ofhcer elected for a 
term, also by his edicts the declarer of the law he had 
to administer^. But the Law-Speaker was in reality 
neither judge nor magistrate, nor, indeed, a legislator, 
except in so far as the right to enounce and interpret 
borders on legislation. He delivered no judgements, he 
had no power of enforcing a decision or of punishing an 
offender. He did not even open the Aljnng and take the 
responsibility for keeping order at it, for these functions 
belonged to the Go5i of the district, called, because the 
Al]5ing met within his jurisdiction, the Allsherjargo6i 
(priest of the whole host). The Logsoguma6r was in 
fact nothing but the living voice of the law, enunciating 
those customary rules which had come down from the 
foretime, rules which all accepted, though they were not 
preserved in any written form, and though they must 
have been practically unknown to the great majority of 
the citizens. 

The ofhce, although more important in Iceland from 
the absence of a king or local prince, was one of which 
we find traces among other Scandinavian peoples, or at 
least among the Norsemen. It appears in Norway, in 
the Orkneys, and in the Hebrides (though there the 
name is Logman, which in Iceland means merely one 
learned in the law). 

Thingvellir, where the Alj^ing met from the year 930 

' Viva vox iuris civilis was the description which the Romans used to give of 
their Praetor, as to whom see Essay XIV, p., 691. 



156 PRIMITIVE ICELAND 

down to a time within the memory of living men, is a 
spot not less remarkable physically than memorable for 
the stirring events of which it was the witness. It is a 
slightly undulating plain, some five miles long by three 
wide, washed on the south by a broad island-studded 
lake, and girdled in at its northern end by lofty moun- 
tains, their black volcanic rocks streaked here and there 
with snow-beds. The surface is all of lava, sometimes 
bare and rugged, sometimes covered with thin brush- 
wood, dwarf birches and willows, sometimes smoothing 
itself out into sweeps of emerald pasture, but everywhere 
intersected by profound chasms, formed when the whole 
was a molten mass. East and west it is hemmed in by 
two lines of precipices, whose rugged sides seem to show 
that the plain between them has, at some remote period, 
perhaps when the lava-flood was cooling, sunk suddenly 
down, leaving these walls to be the edges of the plateau 
which stretches away backwards to the east and west. 
Under the western of these two walls, on the margin of 
the lake, just where it receives the stream which has flung 
itself in a sparkling cascade over the precipice, the place 
of meeting was fixed. The chieftains, who came from 
every corner of the island with a following of armed com- 
panions and dependents, because broils were frequent, 
and armed strife might interrupt the progress of a law- 
suit, built their booths — erections of stone and turf roofed 
for the time with cloth or canvas — along the banks of the 
Oxara river, and turned out their horses to pasture by 
the lake. Places were appointed for the holding of the 
several courts, while the Logretta or legislative commit- 
tee sat on a spot which nature seemed to have herself 
designed for the purpose. Two of the extraordinary 
chasms by which the plain is seamed, each some eighty 
feet deep, and filled for the lower fifty feet by bright 
green water, enclose a narrow strip of lava some two 
hundred yards long, cutting it ofif, except at one point 
where there is a narrow entrance which three men might 
hold, from the surrounding land. The surface is nearly 



PRIMITIVE ICELAyD 157 

level, covered by short grass now browsed by a few 
sheep ; and there is nothing to tell that in this space, in 
the full sight of the assembled multitude, the heroes of 
ancient Iceland spoke and voted their laws, and gave 
their verdicts ; while from an eminence in the midst of 
the enclosure, still called the Logberg, or Hill of Laws, 
the Law-Speaker recited the law of the nation in the sight 
and hearing of the multitude that stood on the further 
side of the chasms i. Not only so: there is all round 
nothing whatever to show that the place has ever been 
different from what it is now. Between the Logberg and 
the lake stand the little wooden church and its huml)Ie 
parsonage. No other house is near, nor any sign of 
human life. Only the islet is still pointed out in the river 
where the solemn duels which the laws of Iceland recog- 
nized were fought, and the deep green swirling pool into 
which women condemned for witchcraft were hurled 
from the brink of the precipice. In most of the spots to 
which the traveller is drawn, by memories of constitu- 
tional freedom or of political struggles, his imagination 
is aided by the remains of the buildings where assemblies 
met or monarchs sat enthroned. Here man has left 
nothing to speak of his presence, and it is hard to realize, 
W'hen one looks on this silent and desolate scene, that it 
was once filled by so much strenuous life, and so often 
resounded to the clash of arms. 

For the Alj'ing was not merely an assembly for the 
dispatch of business: it was the great annual gathering 
of the whole nation, a gathering all the more needed in 
a land where there are no towns, and most men live miles 
away from their nearest neighbours. To it chieftains 
rode with their wives and daughters and a band of armed 
retainers from the furthest corners of the country, tak- 
ing, perhaps, as those must have done who came from the 

• Since this was written, some eminent antiquaries, including my lamented 
friend Dr. GuObrand Vigfiisson, have argued that the true Logberg is to be 
sought not in this spot which tradition indicates, but on the edge of the great lava 
rift called the Almannagia to the west of the river. See T/ie Saga Steads of Ice- 
land^ by W. G. Collingwood and Jon Stefansson, 1899, pp. 14-17. 



158 PFIMITITE ICELAXD 

East fjords along the northern edge of the great central 
desert, a fortnight or more on the way. Shipmasters 
from Norway or Ireland brought their wares for sale. 
Artisans plied their trades. "We are told that even jug- 
glers' sheds and drinking-booths were set up, and games 
of all kinds carried on. It was a great opportunity riot 
only for the renewing of friendships between those who 
lived in distant parts of the country, but for the arranging 
of adoptions and marriages ; and the Sagas mention nu- 
merous instances in which proposals were made or be- 
trothals entered into at a meeting of the Alping, in most 
of which instances the will of the maiden seems to have 
prevailed over that of her parents. It was midsummer, 
when there is in those latitudes no night, but the glare of 
day subsides for a few hours into an exquisitely rich and 
tender twilight, clothing the sky with colours never seen 
in our duller air. And we can fancy how those who fol- 
lowed their fathers to the Aiding found compensation 
for all the loneliness and gloom of the long winter in this 
one fortnight of vivid mirth and excitement. 

The meeting of the Alf ing was not only the centre of 
the political life of the Republic. It was, so to speak, 
the Republic itself, for it was only then that the Republic 
became visible before men's eyes or acted as a collective 
whole. During the rest of the year lawsuits and every- 
thing else of public concern were left to the Quarter 
pings and local pings, and to the local Go6is. The few 
laws or resolutions of general concern which the Aljnng 
passed — they were few, because its legislative activity 
was chiefly occupied in regulating its own judicial pro- 
ceedings — were probably meant to be accepted and ob- 
served over the whole island, but the Aiding did not at- 
tempt to enforce them, and indeed had no machinery by 
which it could do so. Each GoSi was, in a loose way, a 
sort of executive magistrate over his own pingmen; but 
he did not derive his authority from the Central or Fede- 
ral Aljnng, and he was not responsible to the Aljnng for 
its exercise. The Republic, if we may so call it, had no 



PRIMITITE ICELAND 159 

Executive whatever. Its sole official was the Law- 
Speaker (of whom more anon), but his function was only 
to declare the law^ and was exercised only while the 
Alj^ing was sitting. At other times the constituent pings 
and GoSis were virtually quite independent, and might 
and often did carry on war with one another, subject to 
no penalty or liability for so doing, save in so far as an 
action for compensation might be brought against any 
one who had killed another. There was no police, no 
militia, no fleet, no army, nor any means, like those pro- 
vided in the feudal kingdoms of contemporary Europe, 
of raising an army. The isle lay so far away from all 
other countries except Greenland, on which an Icelandic 
colony had been planted, that it happily did not need to 
have a foreign pohcy. There was neither public revenue 
nor public expenditure, neither exchequer nor budget. 
No taxes were levied by the Republic, as indeed no ex- 
penses were incurred on its behalf. 

The Icelandic Republic was in fact a government de- 
veloped only upon its judicial and (to a much smaller ex- 
tent) upon its legislative side, omitting altogether the 
executive and international sides, which were in the 
Greek and Roman world, and have again in the modern 
world, become so important. For a community to exist 
with such an absence of administrative organization was 
obviously possible only in a region like Iceland, severed 
by a wide and stormy sea from the rest of the world, and 
with a very thin and scattered population ; possible too 
only in a simple state of society where man's needs are 
few and every one fends for himself. 

The system whose outlines I have sought to draw is 
full of interest and suggestion, as well to the student of 
legal theory as to the constitutional historian. Some 
modern theorists derive law from the State, and cannot 
think of law as existing without a State. A few among 
them have in England gone so far as to deny that Custo- 
mary Law is law at all, and to define all Law as a Com- 
mand issued by the State power. But here in Iceland we 



160 PRIMITIVE ICELAXD 

find Law, and indeed (as will appear presently) a com- 
plex and highly developed legal system, existing with- 
out the institutions which make a State ; for a community 
such as has been described, though for convenience it 
may perhaps be called a Republic, is clearly not a State 
in the usual sense of the word. Of Iceland, indeed, one 
may say that so far from the State creating the Law, the 
Law created the State — that is to say, such State organi- 
zation as existed came into being for the sake of decid- 
ing lawsuits. There it ended. When the decision had 
been given, the action of the Republic stopped. To 
carry it out was left to a successful plaintiff; and the only 
effect a decision had. so far as the Courts were concerned, 
was to expose the person resisting it to the penalties of 
outlawry — that is to say, any one might slay him, like 
Cain, without incurring in respect of his death any lia- 
bility on the footing of which his relatives could sue the 
slayer. Law in fact existed without any public responsi- 
bility for enforcing it, the sanction, on which modern 
jurists so often dwell as being vital to the conception of 
law, being found partly in public opinion, partly in the 
greater insecurity which attached to the life of the per- 
son who disregarded a judgement. Yet law was by no 
means inefifective. Doubtless it was often defied, and 
sometimes successfully defied. That happened every- 
where in the earlier ^Middle Ages, and happens to-day in 
semi-civilized peoples. But the facts that the Alping 
maintained so active a judicial life, that the field of law 
was cultivated so assiduously, and the details of proce- 
dure worked out with so much pains and art, that law- 
suits were contested so keenly and skilfully — all these 
facts seem to prove that law must have in the main had 
its course and prevailed, for it is hard to suppose that all 
this time and pains would have been during two centuries 
or more devoted to a pursuit which had no practical re- 
sult. The contemporary kingdoms and principalities of 
the earlier ^Middle Ages lived by the vigour of the execu- 
tive. There was in them verv little of a State adm.inistra- 



PRIMITIVE ICELAND 161 

tion, and the law was in most or all of them older than the 
State — that is to say, it had existed in the form of cus- 
toms recognized and obeyed before efficient means were 
provided for enforcing it. So far they resembled Ice- 
land ; and the same may be said of the city republics of 
Italy and Germany. But Iceland is unique as the ex- 
ample of a community which had a great deal of law and 
no central Executive, a great many Courts and no au- 
thority to carry out their judgements. 

The process by which the law of Iceland grew, though 
less exceptional than was its political constitution, il- 
lustrates very happily the origin of Customary Law and 
the first beginnings of legislation. Law springs out of 
usage. The gathering of the neighbours develops into 
the ping or local assembly of Norway and the Folk Mot 
of early England. It treats of all matters of common 
concern ; and as it is the body before whom complaints of 
wrong are laid, it adopts by degrees regular set forms 
of words for the statements of a grievance, and for the 
replies to those statements. The usages become recog- 
nized customs, prescribing" the cases in which redress 
may be claimed and the defences by which the claims 
may be repelled. The forms of words grow more elabo- 
rate and come to be considered so essential that a varia- 
tion from them vitiates the claim. The body of rules 
thus formed becomes so large that only a few men, de- 
voting themselves to the subject, are able to carry the 
whole in their memory. These men, proud of their 
knowledge, elaborate the rules, and particularly the set 
forms of words, still further, and in their enjoyment of 
technicalities attach more and more importance to for- 
mal accuracy. Thus Custom, which was loose and vague 
while held in solution in the minds of the mass, becomes 
crystallized into precision by the labour of the few whose 
special knowledge gives them a sort of pre-eminence, 
and even a measure of power. Then it is found that 
there are diversities of opinion among the experts in the 
law, or instances arise which show that some custom 



162 PRIMITITE ICELAXD 

generally accepted is inconvenient. By this time Cus- 
tom has acquired so much authority that the assembly, 
which has been also, and perhaps primarily, a law court, 
does not venture to transgress it, the men of legal learn- 
ing being of course specially opposed to such a course. 
It therefore becomes necessary formally to change the 
Custom by a resolution of the body which is at once the 
Assembly and the Court. As this body consists of those 
who use, and whose progenitors have created, the cus- 
tom, and as it continues to settle other matters of com- 
mon concern affecting the district, it is the proper and 
only body to make the change. This, then, is legislation 
in its early stage. The law produced, which we may call 
Statute Law, is for many generations extremely small 
in proportion to the mass of law which rests upon Cus- 
tom only. But the Statute Law is important because 
it is explicit, because it is sure to be remembered, be- 
cause it deals with points comparatively large, since it 
would not be worth while to submit small ones to the 
assembly. Nevertheless legislation is among all peoples 
the smallest part of the work of primitive assemblies, 
be they pings or Folk ]\Iots or Agorai or Comitia. And 
the growth of the law of Iceland by custom, preserved 
and elaborated by a succession of law-sages, occasionally 
(though rarely) altered or added to by the vote of the 
Aiding, presents a lively picture of what must have been 
the similar process of the construction of early Roman 
law by the jurists (prudenfes) and assembly (comitia). 

Iceland, however, provided a means for the ascertain- 
ment and publicity of her law which Rome lacked. The 
LogsogumaSr is an elegant (using the word in its strict 
Roman sense) complement to a system of Customary 
Law. His function was well designed to meet and cure 
the two chief defects in such a system, the uncertainty 
which existed as to Avhat the rules accepted as law were 
and the difficulty which an individual desiring to take or 
defend legal proceedings found in discovering what the 
rule applicable to his case really was. The solemn reci- 



PRIMITITE ICELAND 163 

tation of the whole law fixed it in the recollections of 
Hiose who busied themselves with such matters, and 
gave everybody an opportunity of knowing what it co- 
vered. The right to interrogate the living depositary of 
the law as to any special point whereanent the querist 
desired to be informed was a great boon to private per- 
sons, who, since they might often have to sufifer from 
the extreme technicality of procedure, needed all the 
more to be warned beforehand where the pitfalls lay. 
In these respects the Icelandic system contrasts favour- 
ably with those of early Rome and early England. Till 
the Twelve Tables were enacted the private citizen of 
Rome had no means of ascertaining the law except by 
asking some sage, who need not answer unless he 
pleased, and whose view had no authority beyond that 
which his personal reputation implied. Even after the 
Twelve Tables had reduced much of the ancient Custo- 
mary Law to shape, and made it accessible to the citi- 
zens at large, many of the forms of procedure, and the 
rules as to the days on which legal proceedings could be 
taken, were kept concealed by the patrician men of law 
till divulged (at the end of the fourth century B.C.) by 
Cn. Flavins. In England there was indeed no similar 
effort to keep legal knowledge within the hands of a 
few. But the customs were numerous, and many of 
them were uncertain. There was no way of ascertain- 
ing them except by the judgement of a Court, a tedious 
and expensive process, which after all decided only the 
particular point that arose in the case that occasioned 
the judgement. That means of determining a custom 
to be valid and binding which the Icelanders had already 
secured through their official in the last half of the tenth 
century did not begin to be created by the action of the 
English Courts till the end of the twelfth, and centuries 
were needed to complete the process. 

One of the things that most awakens our surprise in 
the Icelandic Constitution is its extreme complexity. In 
one sense simple and even rude, since it omits so much 



164 PRIMITIVE ICELAND 

we should have expected to find in a constitution, it is 
in another sense intricate, and puzzles us by the artificial 
character of the arrriUgements made for the composition 
of the various courts and of the legislative body, while 
the multiplicity of pings, and the distribution of powers 
among them, has given rise to many controversies 
among historians, some still unsettled. This pheno- 
menon, however, finds a parallel in some of the constitu- 
tions of the Greek republics, not to speak of the elabo- 
rate systems of such cities as Florence and A'enice in the 
fourteenth century. In Iceland the strong sense of inde- 
pendence which distinguished the Norsemen, and the 
jealousy the chiefs had of one another, made it necessary 
to devise means for securing equality and for preventing 
the influence of any group or district from attaining 
predominance. Herein the spirit of the Icelandic Con- 
stitution is singularly unlike that of the Roman. There, 
the intense realization of the unity of the city and the 
need for giving its government the maximum of con- 
centration against neighbouring enemies caused vast 
powers to be entrusted first to the King and then to the 
Consuls or to a dictator. In Iceland, where no such 
need of defence existed, where there was no foreign 
enemy, and men lived scattered in tiny groups round 
the edges of a vast interior desert, no executive powers 
were given to anybody, and elaborate precautions were 
taken to secure the rights of the smaller communities 
which composed the Republic and of the priest-chieftains 
who represented them. 

A like intricate character recurs in the system of legal 
procedure, but the cause is different and not peculiar to 
Iceland. The excessive technicality of Icelandic pro- 
cess, and the stress laid upon exact compHance with its 
rules, belong to that stage of the human mind in which 
form and matter have not yet been separated, and in 
which the respect for usage and tradition outweighs the 
sense of substantial justice. Simplicity in legal matters, 
instead of characterizing the state of nature, is the latest 



PRIMITIVE ICELAND 165 

legal achievement of a civilized age. In accounting for 
the strictness of adherence to the letter, we must allow 
something for the dread, natural enough in such an age, 
that if deviations from the letter of the law were over- 
looked, if what we should call a power of amendment on 
matters of form were entrusted to the Court, such dis- 
cretion would be abused and confidence in the Courts 
destroyed. But the reason is chiefly to be found, as in 
the parallel case of those older forms of Roman proce- 
dure which continued terribly technical till the time of 
Cicero, and as in the case of our own older law, to the 
conservative spirit of the lawyers, attached to the forms 
they had received and studied, and taking a professional 
pride in working out their methods, a pride all the greater 
the more technical those methods were, because the 
more intricate the technicalities the higher the impor- 
tance of the few who had mastered them. Substantial 
justice is all the layman cares for. With the lawyer it 
is otherwise. An eminent English judge used to remark 
that of the questions argued before him, counsel showed 
most interest in points of practice, costs came next, 
while the merits of the case were last. The late Baron 
Parke (Lord Wensleydale) was a type of the kind of 
mind which flourished in Iceland in the eleventh cen- 
tury ; and it was a type useful in its way, a type which 
ought always to be represented in the legal profession, 
for reverence for tradition and an acute interest in the 
exactitude of form are hardly less necessary than a philo- 
sophic spirit and a zeal for progress. 

How keen was the taste for legal subtleties and in- 
tricacies is shown, not only by the existence of schools 
of law in Iceland — young men gathering round sages 
like Njal or Skapti Thoroddsson, just as the well-born 
youth of Rome frequented the house of Tib. Corun- 
canius or Q. Mucins Scaevola — but also by the evident 
enjoyment which the authors of the Sagas show, and 
which their public must evidently have taken, in the steps 
in a lawsuit, or in the telling of some incident which 



166 PRIMITITE ICELAXD 

raises a nice point of procedure. In no other literature 
is fiction or history, by whichever name we describe the 
Sagas, so permeated by legal lore. 

Our knowledge of the substance of early Icelandic 
law is derived partty from references or allusions in the 
Sagas, partly from some ancient law-books, the oldest of 
which belongs to the period of the Republic, and was 
compiled, probably about the middle of the twelfth cen- 
tury, out of materials some of them much older, and 
reaching back into the eleventh and even the tenth. Sta- 
tutes had been passed during the course of the tenth cen- 
tury, and the Ulfljotslog of a.d. 930 is spoken of as a 
body of law prepared by Ulfljot after his journey to Nor- 
way and accepted by the Aljnng, though it was probably 
a redaction of existing Xorse customs, and does not 
seem to have been reduced to writing, as indeed it is 
improbable that any laws were written before the be- 
ginning of the twelfth century. The next effort at what 
has been called a codification of the law was made nearly 
two centuries after "Clfljot (about a.d. 1117), when a 
small commission was appointed which examined the 
customs, rejected some, approved or amended others, 
and created what is described as a sort of systematic col- 
lection. This is usually known as the HafliSaskra, from 
a prominent GoSi and lawyer HafliSi Marsson, who was 
a member of the commission. This law is stated to have 
been accepted by the Al]?ing, and was no doubt pre- 
served in writing, as the name Skra (scroll) conveys. 

The later book which used to be described as a Code 
survives in two AISS., differing a good deal from one 
another, and is commonly known as Gragas (' Grey- 
Goose ') ^ It is, however, really not a Code at all, and 
not even a single law-book, but a mass of matter of 
different dates and origins never reduced to any sort of 

1 The name Gragas (probably drawn from the binding in which a copy of it 
was preserved) seems to have originally belonged to a MS. of the Frostapingslog, 
the law which prevailed round Throndhjem in Norway, and to have been applied 
by mistake in the seventeenth century to this Icelandic collection of customs, first 
published by the Arnamagnaean foundation in 1S29. 



PRIMITIVE ICELAND 167 

unity. There are ordinances of the Alfing, decisions 
and declarations delivered by Law-Speakers, ecclesiasti- 
cal regulations, formulas of legal procedure or legal 
transactions, memoranda of customs which seemed to 
those who recorded them to have obtained recognition 
and validity. It is full of instruction as a picture of 
primitive Teutonic institutions and life ; and it throws 
a good deal of light both on the law of early England — 
English and Anglo-Norman — and upon some of the 
most curious features of early Roman law. Sometimes 
the references to the deliverances of a Law-Speaker as 
originating a rule make us think of the Roman Praetor, 
sometimes the concisely phrased records of what was 
settled by the Logretta remind us of our EngHsh reports 
of the judgements of the King's Courts in their early 
forms ; while in one point the collection as a whole has 
a character which belongs to the earlier law-books as 
well of Rome as of England. Though the statutes of 
the Aljiing are the most distinctly authoritative rules it 
contains, much whose authority would seem doubtful 
to a modern is set down in a way which clearly implies 
that it did possess authorit}'. The line between abso- 
lutely binding law and all other law is not sharply drawn ; 
indeed no such line exists. That which is recorded may 
be only a single instance of the observance of an alleged 
custom. It may be only the expression of the individual 
opinion of some learned logmaSr (Lawman = jurist). 
Nevertheless it is a record which has come down from 
the past, and by which therefore the men of the present 
may seek to be guided. 

In the law of Iceland, as it is presented in this ancient 
collection, we have, as in the Constitution of the island 
and the system of the Courts, a striking contrast be- 
tween the rudeness of an extremely archaic society, in 
which private war is constantly going on, piracy is an 
honourable occupation, slavery exists, and there is no 
State administration and very little use of writing, and 
the refined intricacy of a system of law which makes 



168 PRIMITITE ICELAND 

elaborate provision for the definition of legal rights and 
their investigation and determination by legal process. 
The time of day is fixed by guessing at the height of 
the sun above the horizon. The wife is purchased. A 
father may deliver his child into slavery, no doubt (as in 
early Rome), a qualified slavery, for the payment of his 
debts, and the insolvent debtor may be made a slave. 
But, on the other hand, there are rules, not unlike those 
of our modern Courts of Equit}^ regulating the guar- 
dianship of the property of a minor, and permitting a 
portion of it to be applied to the support of his indigent 
father, brother or sister i. There are careful distinctions 
as to who may sue for the penalty for homicide. If the 
slain man is an Icelander, the action goes first to the son, 
then to the nearest blood relation, then to the local Go5i, 
then to any member of the same Quarter, then to any 
citizen (a sort of actio popidaris). If the slain man was 
not an Icelander, but one who used the ' Danish (or 
northern) tongue,' i.e. if he w^as either a Norseman or 
a Dane or a Swede, then any relative may sue ; if a 
stranger of any other nationality, only a father, son or 
brother may sue. But for the protection of persons 
coming in a ship, the comrade or partner ^ of the de- 
ceased, whom failing, the skipper who has the largest 
share in the ship, is a proper plaintiff. 

It is curious to note that, although homicide and mur- 
der were common, the punishment of death is never 
prescribed, even as in two or three of the Southern 
States of America the death penalty is seldom inflicted, 
while ' shootings at sight ' and lynchings abound. And 
an interesting resemblance to early Roman law may be 
found in the extreme severity of the law of slander and 
libel. The truth of a defamatory statement is no defence. 
To afifix a nickname to a man is punishable by banish- 

1 Tliis rule is ascribed to Gu'Smund Thorgeirsson, who was Law-Speaker from 

II23 to I135 A.D. 

2 Partner is felagi (English 'fellow'). Many further rules on this point are 
contained in the passage, Gragas, chap, xxxvii (vol. ii. pp. 71-73 of the Arna- 
magnaean edition). 

19 



PRIMITIVE ICELAND 169 

ment. No verses are to be made on a man, even in his 
praise, without his leave first obtained; and one who 
teaches or repeats the verses made by another incurs an 
equal penalty, the remedy extending even to verses made 
against the memory of the dead. A love poem addressed 
to a woman is actionabk, the action being brought by 
her guardian if she is under twenty years of age ^. 

Of the ramifications of the system of procedure into 
all sorts of Courts, besides the regular pings, I have no 
space to speak ; but one singular illustration of the faith 
which the Icelanders had in the efficacy of legal remedies 
deserves to be given, because in it these remedies reach 
beyond the present life. It comes from the Eyrbyggja 
Saga, one of the most striking of the old tales. 

A chief named Thorodd, living at Fro a in BreiSifjorS, 
on the west side of Iceland, had just before Yule-tide 
been wrecked and drowned with his boat-companions in 
the fjord. The boat was washed ashore, but the bodies 
were not recovered. Thereupon his wife ThuriS and 
his eldest son Kjartan bade the neighbours to the fune- 
ral feast ; but on the first night of the feast, as soon as the 
fire was lighted in the hall, Thorodd and his companions 
entered, dripping wet, and took their seats round it. 
The guests welcomed them : it was held that those would 
fare well with Ran (the goddess of the deep sea) who 
attended their own funeral banquet. The ghosts, how- 
ever, refused to acknowledge any greetings, and re- 
mained seated in silence till the fire had burnt out, when 
they rose and left. Next night they returned at the same 
time and behaved in the same way, and did so, not only 
every night while the feast lasted, but even afterwards. 
The servants at last refused to enter the fire-hall, and no 
cooking could be done, for when a fire was lit in another 
room, Thorodd and his companions went there instead. 
At last Kjartan had a second fire lit in the hall, leaving 
the big one to the ghosts, so the cooking could now be 

* See Grdgds, chaps, civ-cviii, pp. 143-156 of vol. ii. in the Arnamagnaean edi- 
tion. 



170 PEIMITITE ICELAXD 

done. But men died in the house, and ThuriS herself 
fell ill, so Kjartan sought counsel of his uncle Snorri, an 
eminent lawyer and the leading Go8i of Western Ice- 
land. By Snorri's advice Kjartan and seven others with 
him went to the hall door and formally summoned Tho- 
rodd and his companions for trespassing within the 
house and causing men's deaths. Then they named a 
Door-Court (Dyradomr) and set forth the suits, follow- 
ing all the regular procedure as at a ping-Court. Ver- 
dicts were delivered, the cases summed up and judge- 
ment given; and when the judgement word was given on 
each ghost, each rose and quitted the hall, and was never 
seen thereafter. 

Ghosts have given much trouble in many countries, 
but it is only the Icelanders who have dealt with them 
by an action of ejectment. 

Although it is a remarkable evidence of the political 
genius of the Norsemen that they should have been able 
to work at all a legal system such as has been described, 
it need hardly be said that it did not work smoothly. 
The Icelanders were a people of warriors, little accus- 
tomed to restrain their passions, and holding revenge 
for a sacred duty. The maintenance of order at the 
Alj^ing was entrusted to the Go6i of the spot, and it was 
strictly forbidden to wear arms while the meeting lasted. 
The closing of the Aiding was called Vapnatak (weapon- 
taking, wapentake), because the arms that had been laid 
aside were taken when men started to ride home from 
the ping. But the arms were after all only left in the 
booth, and more than once it happened that the party 
which found itself unsuccessful in a lawsuit seized sword 
and spear and fought out the issue in a bloody battle, 
from which sprang again new blood-feuds and new law- 
suits. It is not very often that the Sagas give us a 
glimpse of the conduct of business at the Alping; but 
one such lawsuit, followed by a combat, which arose 
when the suit broke down on a technical point, is de- 
scribed with wonderful force and spirit in the famous 



PRIMITIVE ICELAND 171 

Saga of Njal Thorgeirsson, a masterpiece of literature 
in the freshness and brilHance of its narrative. 

We hear occasionally of the passing of particular laws 
at an Al]>ing. In a.d. 994, for instance, it was enacted 
that the suit for compensation for homicide which was 
brought, according to the general practice of the north- 
ern nations, by and for the benefit of the nearest relatives 
of the slain, a right which has survived in the law of 
Scotland under the name of Assythment, and has been 
partially introduced into the law of England by the Act 
9 & 10 Vict. c. 93 (commonly called Lord Campbell's 
Act), should in future not be brought by a woman or by 
a child under sixteen years of age, but by the nearest 
male relative. This provision was suggested by a case 
that had occurred just before, when inadequate compen- 
sation had been recovered for the slaughter of a chief- 
tain named Arnkel, owing to the mismanagement of the 
suit by his widow. Again, in a.d. 1006 we are told of 
the abolition of the judicial combat on the occasion of 
an indecisive duel between the poet and Viking Gunn- 
laug Ormstunga (Snake's tongue ^) and another poet 
named Hrafn, the details of which are recorded in one 
of the most beautiful and touching of the early Sagas. 
Gunnlaug had been betrothed to Helga the Fair, one of 
the most famous heroines of Icelandic story, but having 
been detained in England by King Ethelred II, whose 
guest he had previously been in London - and whose 
praises he had been celebrating in verse, had failed to 
return at the appointed time, and found Helga, who had 
yielded to the importunities of her relatives, already 
married to Hrafn. According to the custom of the 
North, which then allowed any man to require another 
either to give up his wife and all his property or defend 
her and it by arms, Gunnlaug came to the Aiding and 

' So called from his satirical powers. 

* The Saga says (Gunnlaugs Saga Ormsiungu, chap, vii) that in the days of 
Ethelred son of Edgar (A^alraSr Jatgeirsson) the same tongue was spoken in 
England and Denmark as in Norway, and that this continued in England till Will- 
iam the Bastard won England, after ^vhom Welsh (Valsk = French) was spoken. 



172 PRIMITIVE ICELAND 

formally challenged Hrafn, and they fought, each with 
his second, a solemn duel on the island in the Oxara 
which was set apart for that purpose. A dispute arose 
after the first encounter, and the combatants were sepa- 
rated. Gunnlaug wished to resume the combat, but the 
law already referred to, prohibiting formial duels in fu- 
ture, was passed next day by the Logretta; and he un- 
willingly obeyed, for a breach of it would have exposed 
him to the penalties of outlawry, Helga, however, re- 
fused to live any longer with her husband Hrafn, and 
next year the two rivals sailed by agreement to Norway, 
just as, fifty years ago, persons fearing to fight a duel 
in England used to cross to Calais for the purpose. 
Years passed before they met in the wild country east 
of Throndhjem. There they fought out their quarrel. 
Gunnlaug smote off his enemy's foot, and then proposed 
to stop the combat. Hrafn however, supporting him- 
self against a tree, wished to fight on, but as he was 
tortured by thirst, he besought his opponent to fetch him 
a draught of water from a brook hard by, promising not 
to deceive him. The chivalric Gunnlaug brought the 
water in his helmet, whereupon Hrafn, taking the water 
with his left hand, suddenly raised his sword and, with 
all his remaining strength, smote Gunnlaug on his bared 
head. ' Thou hast done ill and deceived me,' said Gunn- 
laug, ' seeing that I trusted you.' ' So is that,' answered 
Hrafn, ' but I grudged thee the love of Helga the Fair.' 
Then they fought on. Hrafn was slain, and in a few 
hours Gunnlaug died of his wounds i. The news was 
brought to Iceland, and after a time Helga, thinking 
ever of Gunnlaug, and often spreading out upon her 
knees a garment which Gunnlaug had given to her, pined 
away and died likewise. 

Another striking scene at the Alfing has been pre- 

1 The Saga adds that very shortly after the combat, and long before the news 
of it could have reached Iceland, the ghosts both of Gunnlaug and of Hrafn ap- 
peared in dreams to their respective fathers in Iceland, and recited poems describ- 
ing their deaths. Illugi the Black, Gunnlaug's father, remembered the poem he 
heard and repeated it aloud next day. The Saga gives both poems. This is one 
of the earliest Teutonic instances of a death-apparition. 



PRIMITIVE ICELAND 173 

served to us in the Saga which relates the introduction 

of Christianity. King Olaf Tryggvason, the most bril- 
Hant of all the Norwegian sovereigns, who, having been 
himself converted some ten years before, was hard at 
work converting the stubborn Norwegians by burning 
their houses and torturing themselves, had sent two 
missionaries to Iceland, one of whom, the priest Thang- 
brand, had been obliged to leave Norway on account of 
his violent life, and who signalized himself in Iceland by 
committing two murders in the course of his five 
months' stay, which was then summarily shortened. 
The unworthiness of the minister, however, does not 
seem to have injured the cause he championed. Several 
men of note embraced the new faith, which was of course 
well known to the Icelanders from their intercourse with 
Ireland and Britain, and had the promise of the future 
to recommend it. These men, and also some heathen 
chieftains who thought that acceptance was the best way 
of avoiding civil war, supported the envoys of Olaf, 
when, at the Aljnng of the year looo, they urged upon 
the assembly to decree the abolition of paganism. A 
story goes that, while the debate was at its height, a 
messenger arrived to tell that a volcano had broken out 
thirty miles to the south, and was pouring a flood of lava 
over the pastures. The heathen party accepted the news 
as an omen, and exclaimed, ' This is the wrath of the 
gods at these new rites ; see what you have to expect 
from their anger ! ' ' With whom, then,' said Snorri, a 
leading Go6i who had not yet declared himself, ' with 
whom were the gods angry when this rock was molten 
on which we stand? ' (pointing to the deep lava rifts that 
lay around the Logberg). By the interposition of the 
Law-Speaker Thorgeir, that which he described as a 
compromise, but which was in reality a surrender by the 
heathen party, was at the same Alping accepted. The 
people were to be baptized and declare themselves Chris- 
tians, and the temples and images of the old gods were 
to be destroyed ; but those who liked to sacrifice at home 



174 PRIMITITE ICELAND 

might continue to do so ; and two heathen customs, the 
exposure of new-born infants and the eating of horse- 
flesh, were to be permitted. Some difficulty arose over 
the reluctance of those who came from the Xorth and 
East Quarters of the island to submit to immersion in 
cold water ; but this difficulty was happily overcome by 
the use of the hot springs at Reykir for the rite. 

The century and a half that followed the introduction 
of Christianity was the most brilliant period in the his- 
tory of the island. It was not indeed a time of peace, 
for the old passions and the old superstitions were but 
little altered. Slayings and burnings of houses with 
their inmates went on pretty much as before. But there 
was now added to the stimulus which their free republi- 
can life and their piratical expeditions gave to the na- 
tional spirit the influence of the learning and ideas which 
came in the train of the new faith. The use of writing 
soon spread, and the magnificent Sagas, which are 
among the noblest monuments of Northern genius, were 
nearly all of them produced in this age, though some 
were not committed to parchment before the end of the 
twelfth century. 

For many years the Constitution of the Republic 
seems to have undergone no great alteration. The 
establishment of Christianity did indeed throw consider- 
able power into the hands of the two bishops, and eventu- 
ally produced a strife between the Church and the tem- 
poral magnates resembling that which distracted both 
the Romano-Germanic Empire and England. This 
scarcely affected the position of the GoSi, whose autho- 
rity had now lost so miuch as it originally possessed of a 
religious character. Snorri, whose appeal to geology is 
said to have decided the Aiding against paganism, was 
himself the priest of the most famous heathen sanctuary 
of the island. But in the beginning of the thirteenth 
century the delicately-framed fabric of the Republican 
Constitution began to break up. The tendency of a fede- 
ration usually is to become less of a federation and more 



PRIMITIVE ICELAlsD 175 

of a single united state. But in Iceland the federal bond, 
if one can use this name, was always weak, and when a 
powerful member became disobedient, there were no 
legal means of reducing him to submission. By degrees 
the number of priest-chieftainships diminished, the 
GoSorGs, which passed not only by inheritance but also 
by gift or sale, coming to be accumulated in the hands of 
a few great families, who thus acquired a predominant in- 
fluence at the Aljnng, were virtually masters of large dis- 
tricts of the country, and marched about like feudal lords 
attended by petty armies. Thus the old blood-feuds as- 
sumed more and more the aspect of civil wars. Piracy 
was now less practised, because the countries which had 
formerly been ravaged were better prepared for defence, 
so the energy that used to spend itself upon the coasts of 
Scotland and Ireland, of North Germany and Gaul, was 
now turned inward, and with fatal results. 

I am not writing the history of Iceland, though indeed 
I wish I were doing so, for the theme is a fascinating 
one. But before closing these scattered observations, 
intended to stimulate rather than to satisfy curiosity, I 
will add three remarks suggested by the sketch that has 
been given. 

The first remark is that Iceland presents one of the 
few instances in history of a breach in the continuity! 
of institutional development. The settlers were all of 
Norse stock ; and Norway had in its petty communities a 
rudimentary system of institutions not unlike that de- 
scribed by Tacitus in his account of Germany, or thatj 
which the conquering Angles and Saxons brought to,' 
Britain. Each community was an independent Fylki 
(folk). In each Fylki there was a number of nobles, one/ 
of whom stood foremost as hereditary chieftain, and al 
body of warlike freemen, as well as a certain nvmiber of 
slaves. In each there was a popular assembly, the ping, 
corresponding to our Saxon Folk Mot. Now owing to 
the way in which the settlers had planted themselves 
along the coasts of Iceland, and to the fact that they 



176 PRIMITIVE ICELAND 

were less closely aggregated there than men had been 
in Norway, this organization did not reappear in the 
new land. There was indeed everywhere a ping, for the 
habit of meeting to deal with lawsuits and other mat- 
ters of common interest was cherished as the very foun- 
dation of society. But an Icelandic community was not 
a Fylki. It was not an old natural growth, but rather a 
group of famiHes whose tie was at first only that of local 
proximity and thereafter that also of worship at a com- 
mon temple. The GoSi, though he became the centre 
of this group, was not a chieftain with a hereditary claim 
to leadership, and was not necessarily of any higher 
lineage than some of his pingmen. Such eminent and 
high-born men as Njal for instance and Egil Skalla- 
grimsson were not GoSis. The Go6or5 was really a 
new institution, due to the special circumstances of Ice- 
land, and apparently without precedent among the Teu- 
tonic races. Still more plainly was the organization of 
the Republic with its scheme of Courts and its Logretta 
a new creation, due to the wisdom and public spirit of 
the leading men of the nation, and not a purely natural 
growth. 

Secondly, as the Icelandic Republic is a new form of 
political society, so the Alping, in which the unity of 
the Republic found visible expression, is a unique body,, 
which cannot be referred to any one of the familiar types 
of assembly. It is not a Primary Assembly, for though 
all freemen are present, only a limited number of persons 
are entitled to exercise either judicial or legislative func- 
tions. Neither is it a Representative Assembly, for no 
one was elected to sit in it as a delegate from others. 
The GoSis sat each by his own right, and the other mem- 
bers as nominees of the GoSis. Neither again is it a sorti 
of King's Council, like the Curia Regis of mediaeval! 
England, consisting of magnates and official advisers 
summoned by a monarch. If parallels to it are to be 
sought, they are to be sought rather in bodies such as 
the Roman Senate may have been in its earlier form, a 



PRIMITIVE ICELAND 177 

sort of council of the heads of organized communities ; 
yet the differences between the Roman gcntcs and the 
Icelandic pingmen, and the absence of an executive 
magistrate Hke the Roman king, make the parallel any- 
thing but close. Still more remote is the resemblance 
which the Alj'ing might be deemed to bear to the coun- 
cil of a league, such as was the Swiss Confederation be- 
fore 1799, or such as the Diet of the Romano-Germanic 
Empire in its later days. 

The comparison of Iceland to a federation suggests 
a third question. Why did not the Republic develop into 
a united State, whether republican or monarchical, as did 
most of the nations of mediaeval Europe ? 

Out of several reasons that might be assigned I will 
mention three only, two of them political, the third 
physical. 

In Iceland there was no single great family with any 
hereditary claim to stand above the others, while all 
the leading families were animated by a high sense of 
pride and a pervading sentiment of equality. This love 
of equality remains among the sons of the old Norse- 
men both in Iceland and in Norway, and is indeed 
stronger there than anywhere else in Europe. 

Iceland had not. and could not have, any foreign wars. 
There was therefore no external strife to consolidate 
her people, no opportunity for any leader to win glory 
against an enemy, or to create an army on which to base 
his power. All the wars were civil wars, and tended to 
disunion. 

The third reason is to be found in the nature of the 
country. The island, larger than Ireland, has practically 
no land fit for tillage, and very little lit even for pasture. 
Neither has it any internal trade. The interior is occu- 
pied by snow mountains and glaciers and lava-fields and 
wastes of black volcanic sand or pebbles. Iceland is 
really one huge desert with some habitable spots scat- 
tered along its coasts. It was the Desert that most of 
all destroyed the chances of political unity under a re- 



178 PRIMITIVE ICELAND 

public by dividing the people into numerous small 
groups, far removed from one another, and in many 
places severed by rugged and barren wastes, or by tor- 
rents difficult to cross. 

Nevertheless, although the Republic was evidently 
destined to perish, it is possible that had Iceland been 
left to herself the rivalry of the two or three great fac- 
tions which divided it, and were usually in arms against 
one another, would have ended in the triumph of one 
of them, and in the establishment of a monarchy, or (less 
probably) of several independent rival principalities. 
But a new and more formidable figure now appeared on 
the scene. The successors of King Harald the Fair- 
haired had always held that the Icelanders, since their 
ancestors had come from Norway, ought to own their 
supremac}"^, and they argued that as monarchical gov- 
ernment was divinely appointed, and prevailed every- 
where in Continental Europe, no republic had a right 
to exist. King Hakon Hakonsson (Hakon IV), one of 
the greatest among the kings of Norway, now found in 
the distracted state of the island a better opportunity 
of carrying out the plans which his predecessors Olaf 
Tryggvason and Olaf the Saint had been obliged, by the 
watchfulness of the Alping, to abandon. By bribes and 
by threats, by drawing the leading Icelanders to his 
Court, and sending his own emissaries through the 
island, he succeeded in gaining over the few chiefs who 
now practically controlled the Al]nng, and at the meeting 
of midsummer, a.d. 1262 (one year before the battle of 
Largs, which saved Scotland from the invasion of this 
very Hakon), the Southern, Western and Northern 
Quarters accepted the King of Norway as their sove- 
reign, while in 1264 (the year of the summoning of the 
first representative Parliament of England by Earl 
Simon de Montfort) the remaining districts which had 

1 This claim of a Crown to the allegiance of emigrants who had passed into 
new lands reminds one of that made by the British Government, down to 1852 and 
1854, as respects the Dutch farmers who had gone forth into the wilderness of 
South Africa in 1836. 



PRIMITIVE ICELAND 179 

not yet recognized the Norwegian Crown, now held 
by Magnus son of Hakon, made a Hke submission. 
Thenceforward Iceland has followed the fortunes first 
of Norway and then of Denmark. In 1814, when Nor- 
way was severed from the Danish and transferred to the 
Swedish Crown, Iceland ought to have gone with Nor- 
way. But nobody at the Congress of Vienna knew or 
cared about the matter ^ : and so Iceland remains at- 
tached to Denmark, for which she has little love. 

With the free republic the literature which had given 
it lustre withered up and disappeared. Only one work 
of high merit, the religious poem called TJic Lily, was 
produced in the centuries that succeeded down to the 
Reformation, when the spirit of the people was again 
stirred, and a succession of eminent writers began which 
has never failed down to our own day. But in the dark- 
est times, in the ignorance and gloom of the fifteenth 
century, in the pestilences and famine caused by the ter- 
rible volcanic eruptions of the eighteenth, which are 
said to have destroyed one-fifth of the population, the 
Icelanders never ceased to cherish and enjoy their 
ancient Sagas. No farmhouse wanted its tiny store of 
manuscripts, which were and still are read aloud in the 
long nights of winter, while the women spin and the 
men make nets and harness. And it is beyond doubt 
chiefly owing to the profusion and the literary splendour 
of these works of a remote antiquity — works produced in 
an age when England and Germany, Italy and France 
had nothing better than dull monkish annalists or the 
reciters of such a tedious ballad epic as the Song of the 
AUbclwigs — that the Icelandic language has preserved 
its ancient strength and purity, and that the Icelandic 
nation, a handful of people scattered round the edge of a 
vast and dreary wilderness, has maintained itself, in face 
of the overwhelming forces of nature, at so high a level 
of culture, virtue and intelligence. 

1 The preliminaries to*the Treaty of Kiel by which Norway was severed from 
the Danish Crown to be attached to the Swedish refer to Iceland, the Faeroe 
Isles, and Greenland as having ' never belonged to Norway.' 



VI 

THE UNITED STATES CONSTI- 
TUTION AS SEEN IN THE PAST 

The Predictions of Hamilton and Tocqueville 

He who desires to discover what have been the main 
tendencies ruHng and guiding the development of Ameri- 
can institutions, will find it profitable to examine what 
were the views held and predictions delivered, at dif- 
ferent epochs in the growth of the Republic, by acute 
and well-informed observers. There is a sort of dra- 
matic interest in this method of inquiry, and it is calcu- 
lated to temper our self-confidence in judging the pheno- 
mena of to-day. Besides, it helps us to realize, better 
than we can do merely by following the course of events, 
what aspect the political landscape wore from time to 
time. When we read a narrative, we read into the events 
our knowledge of all that actually flowed from them. 
When we read what the contemporary observer ex- 
pected from them as he saw them happening we reach 
a truer comprehension of the time. 

To collect and set forth a representative anthology of 
political prophecies made at critical epochs in the history 
of the United States, would be a laborious undertaking, 
for one would have to search through a large number 
of writings, some of them fugitive writings, in order to 
present adequate materials for determining the theories 
and beliefs prevalent at any given period. I attempt 



HAMILTON AND TOCQVEVILLE 181 

nothing so ambitious. I desire merely to indicate, by 
a comparatively simple example, how such a method 
may be profitably followed, disclaiming any pretensions 
to dig deep into even the obvious and familiar materials 
which students of American history possess. 

For this purpose, then, I will take two famous books 
— the one written at the very birth of the Union by those 
who watched its cradle, and recording incidentally, and 
therefore all the more faithfully, the impressions and 
anticipations of the friends and enemies of the infant 
Constitution ; the other a careful study of its provisions 
and practical working by a singularly fair and penetrat- 
ing European philosopher. I choose these books not 
only because both are specially representative and of 
rare literary merit, but because they are easily accessible 
to European as well as American readers, who may, 
by referring to their pages, supply the omissions which 
want of space will compel me to make, and may thereby 
obtain a more full and graphic transcript of contempo- 
rary opinion. One of these books is TJic Federalist ^ — a 
series of letters recommending the proposed Constitu- 
tion for adoption to the people of New York, written in 
1788 by Alexander Hamilton, afterwards Secretary of 
the Treasury, James Madison, afterwards President 
from 1809 to 1817, and John Jay, afterwards Chief Jus- 
tice from 1789 to 1795. They were all signed PiibUns. 
The other, which falls not quite halfway between 1788 
and our own time, is the Democracy in America of Alexis 
de Tocqueville. 

I. The United States at the Adoption of the 
Constitution. 

I begin by briefly summarizing the record which The 
Federalist preserves for us of the beliefs of the opponents 
and advocates of the Draft Constitution of 1787 regard- 

' There are several good editions of The Federalist. The latest and one of the 
best known to me is that edited by Mr. Paul Leicester Ford (New York, 1898). 



182 HAMILTON AND TOCQUETILLE 

ing the forces then at work in American poHtics and 
the probable future of the nation. 

To understand those behefs, however, Ave must bear 
in mind what the people of the United States then were, 
and for that purpose I will recah the reader's attention 
to some of the more salient aspects of the Republic at 
the epoch when its national life began. 

In 1^83 the last British soldier quitted New York, the 
last stronghold that was held for King George. In 1787 
the present Constitution of the United States was framed 
by the Convention at Philadelphia, and in 1788 accepted 
by the requisite number of States (nine). In 1789 
George Washington entered on his Presidency, the first 
Congress met and the machine began to work. It was 
a memorable year for Europe as well as for America — 
a year which, even after the lapse of more than a cen- 
tury, we are scarcely 3^et ripe for judging, so many sor- 
rows as well as blessings, ttoXXo. fxkv icrOXa ixejXLyixkva, TToXXa 
Be Xvypd, were destined to come upon mankind from 
those elections of the States-General which were pro- 
ceeding in France while Washington was being installed 
at Philadelphia. 

All of the thirteen United States lay along the Atlantic 
coast. Their area was 827,844 square miles, their popu- 
lation 3,929,214, little more than half the population of 
New York State in 1900. Settlers had already begun to 
cut the woods and build villages beyond the Alleghanies ; 
but when Kentucky was received as a State into the 
Union in 1792, she had a population of only 80,000. The 
population was wholly of English (or Anglo-Scottish) 
stock, save that a few Dutch were left in New York, a 
few persons of Swedish blood in Delaware, and some 
isolated German settlements in Pennsylvania. But in 
spite of this homogeneity the cohesion of the States was 
weak. Communication was slow, difficult and costly. 
The jealousies and suspicions which had almost proved 
fatal to Washington's efforts during the War of Inde- 
pendence were still rife. There was some real conflict, 



HAMILTON AND TOCQUEVILLE 183 

and a far greater imagined conflict, of interests between 
the trading and the purely agricultural States, even more 
than between the slave States and those in which slavery 
had practically died out. Many competent observers 
doubted whether the new Federal Union, accepted only 
because the Confederation had proved a failure and the 
attitude of foreign powers was threatening, could main- 
tain itself in the face of the strong sentiment of local 
independence animating the several colonies, each of 
which, after throwing off the yoke of Britain, was little 
inclined to brook any control but that of its own legisla- 
ture. The new Constitution was an experiment, or 
rather a bundle of experiments, whose working there 
were few data for predicting. It was a compromise, and 
its own authors feared for it the common fate of compro- 
mises — to satisfy neither party and to leave open rents 
which time would widen. In particular, it seemed most 
doubtful whether the two branches of the Legislature, 
drawn from so wide an area and elected on different 
plans, would work harmoniously, and whether general 
obedience would be yielded to an executive President 
who must necessarily belong to and seem to represent 
one particular State and section of the country. Par- 
ties did not yet exist, for there was as yet hardly a na- 
tion; but within a decade they grew to maturity and 
ferocity. One of them claimed to defend local self-gov- 
ernment, the rights of the people, democratic equality; 
the other, the principle of national unity and the au- 
thority of the Federal power. One sympathized with 
France, the other was accused of leaning to an English 
alliance. They were, or soon came to be, divided not 
merely on burning questions of foreign policy and home 
policy, but also — and this was an issue which mixed itself 
up with everything else — as to the extent of the powers 
to be allowed to the central Government and its rela- 
tions to the States — questions which the curt though ap- 
parently clear language of the Constitution had by no 
means exhausted. 



184 HAMILTON AXD TOCQUETILLE 

Slavery was not yet a burning question — indeed it 
existed to some slight extent in the Aliddle as weh as in 
the Southern States, but the opposition of North and 
South was already visible. The Puritanism of New Eng- 
land, its industries and its maritime commerce, gave it 
different sentiments as well as different interests from 
those which dominated the inhabitants of the South, a 
population wholly agricultural, among whom the influ- 
ence of Jefferson was strong, and theories of extreme 
democracy had made progress. 

There was great diversity of opinion and feehng on 
all pohtical questions in the America of those days, and 
the utmost freedom in expressing it. Over against the 
extreme democrats stood an illustrious group whose 
leader was currently .believed to be a monarchist at 
heart, and who never concealed his contempt for the 
ignorance and folly of the crowd. Among these men, 
and to a less extent among the JefTersonians also, there 
existed no small culture and literary power, and though 
the masses were all orthodox Christians and, except in 
Maryland, orthodox Protestants, there was no lack of 
scepticism in the highest circles. One may speak of 
highest circles, for social equality, though rapidly ad- 
vancing and gladly welcomed, was as yet rather a doc- 
trine than a fact : and the respect for every kind of au- 
thorit}' was great. There were neither large fortunes 
nor abject poverty: but the labouring class, then far less 
organized than it is now, deferred to the middle class, 
and the middle class to its intellectual chiefs. The clergy 
were powerful in New England : the great colonial fami- 
lies enjoyed high consideration in New York, in Penn- 
sylvania, and above all in Virginia, whose landowners 
seemed to reproduce the later semi-feudal society of 
England. Although all the States were republics of a 
hue already democratic, every State constitution re- 
quired a property qualification for the holding of office 
or a seat in the Legislature, and, in most States, a simi- 
lar condition was imposed even on the exercise of the 
20 



HAMILTON AND TOCQTJETILLE 185 

suffrage. Literary men (other than Journalists) were 
rare, the universities few and old-fashioned in their 
methods, science scarcely pursued, philosophy absorbed 
in theology and theology dryly dogmatic. But public 
life was adorned by many striking figures. Five men at / 
least of that generation, Washington, Franklin, Hamil- I 
ton, Jefferson and Marshall, belong to the history of the 
world ; and a second rank which included John Adams, 
Madison, Jay, Patrick Henry, Gouverneur Morris, 
Roger Sherman, James Wilson, Albert Gallatin, and 
several other gifted figures less familiar to Europe, must 
be mentioned with respect. 

Everybody professed the principles of the Declaration 
of Independence, and therefore held a republican form 
of government to be the only proper, or at any rate the 
only possible form for the central authority as well as for 
the States. But of the actual working of republican gov- 
ernments there was very little experience, and of the 
working of democracies, in our present sense of the 
word, there was really none at all beyond that of the ^ 
several States since 1776, when they broke loose from 
the British Crown. Englishmen are more likely than 
other Europeans to forget that in 1788 there was in the 
Old World only one free and no democratic nation ^.^ 
In Europe there now remain but two strong monarchies,/ 
those of Russia and Prussia, while the Western hemi- 
sphere, scarcely excepting Dutch and British Guiana 
and Canada, is entirely (at least in name) republican. 
But the world of 1788 was a world full of monarchs — , 
despotic monarchs — a world which had to go back for, 
its notions of popular government to the common- 
wealths of classical antiquity. Hence the speculations 
of those times about the dangers, and merits, and ten- 
dencies characteristic of free governments, were and -, 
must needs be vague and fantastic, because the mate- 
rials for a sound ^induction were wanting. Wise men, 

1 The Swiss Confederation was hardly yet a nation, and few of tlie cantons 
were governed democratically. 



186 HAMILTON AND TOCQUEVILLE 

when forced to speculate, recurred to the general prin- 
ciples of human nature. Ordinary men went off into the 
air and talked at large, painting a sovereign people as 
reckless, violent, capricious on the one hand, or virtu- 
ous and pacific on the other, according to their own pre- 
dilections, whether selfish or emotional, for authority 
or for liberty. Though no one has yet written the na- 
tural history of the masses as rulers, the hundred years 
since 1788 have given us materials for such a natural 
history surpassing those which Hamilton possessed al- 
most as much as the materials at the disposal of Darwin 
exceeded those of Buffon. Hence in examining the 
views of the Federalist writers ^ and their antagonists, 
we must expect sometimes to find the diagnosis inexact 
and the prognosis fanciful. 



II. Predictions of the Opponents and Advocates 
OF the Constitution. 

Those who opposed the Draft Constitution in 1787, 
a party both numerous and influential in nearly every 
State, were the men specially democratic and also spe- 
cially conservative. They disliked all strengthening of 
government, and especially the erection of a central au- 
thority. They were satisfied with the system of sove- 
reign and practically independent States. Hence they 
predicted the following as the consequences to be ex- 
pected from the creation of an effective Federal execu- 
tive and legislature ^. 

I. The destruction of the States as commonwealths. 
The central government, it was said, would gradually 
encroach upon their powers ; would use the federal army 

1 Of these writers Hamilton must be deemed the leading- spirit, not merely 
because he wrote by far the larger number of letters, but because his mind was 
more penetrating and commanding than either Madison's or Jay's. Madison ren- 
dered admirable service in the Philadelphia Convention of 1787, but afterwards 
yielded to the influence of Jefferson, a character with less balance but more force 
and more intellectual fertility. 

2 I take no account of those objections to the Constitution which may be 
deemed to have been removed by the first eleven amendments. 



HAMILTON AND TOCQUEVILLE 187 

to overcome their resistance ; would supplant them in 
the respect of their citizens ; would at last swallow them 
up. The phrase ' consolidation of the Union,' which 
had been used by the Convention of 1787 to recommend 
its draft, was laid hold of as a term of reproach. ' Con- 
solidation,' the absorption of the States by or into one 
centralized government, became the popular cry, and 
carried away the unthinking. 

2. The creation of a despot in the person of the Presi- 
dent. His legal authority would be so large as not only 
to tempt him, but to enable him, to extend it further, 
at the expense of the liberties both of States and of peo- 
ple. ' Monarchy,' it was argued, ' thrown ofif after such 
efforts, will in substance return with this copy of King 
George III, whose command of the federal army, power 
over appointments, and opportunities for intriguing with 
foreign powers on the one hand and corrupting the 
legislature on the other 1, will render the new tyrant 
more dangerous than the old one. Or if he be more 
open to avarice than to ambition, he will be the tool of 
foreign sovereigns and the means whereby they will con- 
trolor enslave America ^. 

3. The Senate will become an oligarchy. Sitting for 
six years, and not directly elected by the people, it 
' must gradually acquire a dangerous pre-eminence in 

1 See T/ie Federalist, No. LIV. 

* The Federalist, No. LXVI, p. 667. 'Calculating upon the aversion of the 
people to monarchy, the writers against the Constitution have endeavoured to 
enlist all their jealousies and apprehensions in opposition to the intended Presi- 
dent of the United States, not merely as the embryo but as the full-grown 
progeny of that detested parent. They have to establish the pretended affinity, 
not scrupled to draw resources even from the regions of fiction. The authority of 
a magistrate in few instances greater, in some instances less, than those of a Gov- 
ernor of New York, have been magnified into more than royal prerogatives. He 
has been decorated with attributes superior in dignity and splendour to those of a 
King of Great Britain. He has been shown to us with the diadem sparkling on 
his brow and the imperial purple flowing in his train. He has been seated on a 
throne surrounded with minions and mistresses, giving audience to the envoys 
of foreign potentates in all the supercilious pomp of majesty. The images of 
Asiatic despotism and voluptuousness have scarcely been wanting to crown 
the exaggerated scene. We have been taught to tremble at the terrific visages 
of murdering janizaries, and to blush at the unveiled mysteries of a future 
seraglio.' 

These were the days when Johnson and Gibbon ruled English style. 



188 HAMILTON AND TOCQUETILLE 

the government, and finally transform it into a tyranni- 
cal aristocracy ^.' 

4. The House of Representatives will also, like every 
other legislature, aim at supremacy. Elected only once 
in two years, it will forget its duty to the people. It 
will consist of 'the wealthy and well-born," and will 
try to secure the election of such persons only as its 
members -. 

5. The larger States will use the greater weight in the 
government which the Federal constitution gives them 
to overbear the smaller States. 

6. The existence of a strong central government is 
not only likely, by multiplying the occasions of diplo- 
matic intercourse with foreign powers, to give openings 
for intrigues by them dangerous to American independ- 
ence, but likely also to provoke foreign wars, in which 
the republic will perish if defeated, or if victorious main- 
tain herself only by vast expenditure, with the additional 
evil of having created in an army a standing menace to 
freedom. 

That some of these anticipations were inconsistent 
with others of them was no reason why even the same 
persons should not resort to both in argument. Any 
one who wishes to add to the number, for I have quoted 
but a few, being those which turn upon the main out- 
lines of the Philadelphia draft, may do so by referring 
to the record, known at Elliott's Debates, of the discus- 
sions in the several State Conventions which deliberated 
on the nev/ Constitution. It is an eminently instructive 
record. 

I pass from the opponents of the Constitution to its 
advocates. Hamilton and its friends sought in it a 
remedy against what they deemed the characteristic 
dangers of popular government. It is by dwelling on 
these dangers that they recommend it. We can per- 
ceive, however, that, while lauding its remedial power, 

1 T^e Federalist, No. LXII. 

2 The Federalist, Nos. LVI and LIX. 



HAMILTON AND TOCQLEYILLE 189 

they are aware how deep-seated such dangers are, and 
how likely to recur even after the adoption of the Con- 
stitution. The language which Hamilton held in private 
proves that he desired a more centralized government, 
which would have approached nearer to that British 
Constitution which he regarded as being, with all its 
defects (and partly owing to its corruptions !) the best 
model for free nations^. He feared anarchy, and 
thought that only a strong national government could 
avert it. And in a remarkable letter written in Febru- 
ary, 1802, under the influence of disappointment with the 
course events were then taking, he describes, in his 
somewhat sweeping way, the Constitution he was ' still 
labouring to prop ' as a ' frail and worthless fabric' ~" 

We may therefore legitimately treat his list of evils 
to be provided against by the new Federal Government 
as indicating the permanently mischievous tendencies 
which he foresaw. Some of them, he is obliged to admit, 
cannot be wholly averted by any constitutional devices, 
but only by the watchful intelligence and educated virtue 
of the people. 

The evils chiefly feared are the following: — 

1. The spirit and power of faction, which is so clearly 
the natural and necessary offspring of tendencies always 
present in mankind, that wherever liberty exists it must 
be looked for ~. 

Its caiises are irremovable ; all you can do is to control 
its. effects, ancTthe best prospect of overcoming them 
is"affo'fded by the representative system and the wide 
area of the United States with the diversities among its 
population. 

2. Sudden impulses, carrying the people away and in- 
ducing hasty and violent measures ^. 

3. Instability in foreign policy, due to changes in the 

' Though he, like other observers of that time, had not realized, and might 1 
not have relished, the supremacy, now become omnipotence, which the House of 
Commons had already won. ! 

2 Tke Federalist, No. X (written by Madison), and in other letters. ^ 

s The Federalist, No. LXII. 



190 HAMILTON AXD TOCQUETILLE 

executive and in public sentiment, and rendering neces- 
sary the participation of a comparatively small council 
or Senate in the management of this department. 

4. Ill-considered legislation. ' Facility and excess of 
law-making 1,' and 'inconstancy and mutability in the 
laws 2/ form the ' greatest blemish in the character and 
genius of our governments.' 

5. The Legislature is usually the strongest power in 
free governments. It will seek, as the example of the 
English Parliament shows, to encroach upon the other 
departments ; and this is especially to be feared from 
the House of Representatives as holding the power of 
the purse ^. 

6. The States, and especially the larger States, may 
overbear the Federal Government. They have closer 
and more constant relations with the citizen, because 
they make and administer the ordinary laws he lives 
under. His allegiance has hitherto belonged to them, 
and may not be readily given to the central authority. 
In a struggle, should a struggle come. State power is 
likely to prevail against Federal power. 

7. There is in republics a danger that the majority 
may oppress the minority. Already conspicuous in some 
of the State governments, as for instance in Rhode 
Island, this danger may be diminished by the applica- 
tion of the federal system to the great area of the Union, 
where ' society will be broken into so many parts, in- 
terests, and classes of citizens, that the rights of indi- 
viduals or of the minority will be in little danger from 
interested combinations of the majority ■*.' 

8. Another source of trouble is disclosed by the rash 

1 TAe Federalist, No. LXI. 

2 The Federalist, No. LXXII. 

3 ' The Legislative Department is everjrwhere (f. e. in all the States) extending- 
the sphere of its activity and drawing all power into its impetuous vortex. . . . 
It is against the enterprising ambition of this department that the People ought to 
indulge all their jealousy and exhaust all their precautions ' (The Federalist, No. 
XLVII). The people have now begun to resort to precautions ; but it is not the 
ambition of State legislatures that is feared, it is their subserviency to private 
interests or the party machine. 

* The Federalist, No. L. 



HAMILTON AND TOCQUEYILLE 191 

and foolish experiments which some States have tried 
in passing laws which threaten the validity of contracts 
and the security of property. There are also signs of 
weakness in the difficulty which State Governments have 
found in raising revenue by direct taxation i. Citizens 
whose poverty does not excuse their want of public 
spirit refuse to pay; and the administration fears to 
coerce them. 

Not less instructive than the fears of The Federalist 
writers are their hopes. Some of the perils which have 
since been disclosed are not divined. Some institutions 
which have conspicuously failed are relied on as full of 
promise. 

The method of choosing the President is recom- 
mended with a confidence the more remarkable because 
it was the point on which the Convention had been most 
divided and had been latest in reaching an agreement. 

' If the manner of the appointment of the Chief Magi- 
strate be not perfect, it is at least excellent. It unites 
in an eminent degree all the advantages the union of 
which was to be wished for. . . . The process of elec- 
tion affords a moral certainty that the office of President 
will never fall to the lot of any one who is not in an 
eminent degree endowed with the requisite qualifica- 
tions. Talents for low intrigue, and the little arts of 
popularity, may alone suffice to elevate a man to the 
first honours in a single State, but it will require other 
talents and a different kind of merit to establish him in 
the confidence and esteem of the whole Union, or of so 
considerable a portion of it as would be necessary to 
make him a successful candidate for the distinguished 
office of President of the United States. It will not be 
too strong to say that there will be a constant probability 
of seeing the station filled by characters pre-eminent for 
ability and virtue ^.' 

1 TAe Federalist, No. XII. 

" The Federalist, No. LXVII. In a. d. 1800, twelve years after Hamilton 
wrote this passage, the contest for the Presidency lay between Jefferson and 
Aaron Burr, and Hamilton was compelled by his sense of Burr's demerits to 



192 HAUILTOX AXD TOCQUETILLE 

It is assumed that America will continue an agri- 
cultural and (to a less extent) a commercial country, 
but that she will not develop manufactures ; and also 
that the fortunes of her citizens will continue to be 
small ^. Xo serious apprehensions regarding the influ- 
ence of wealth in elections or in politics generally are 
expressed. 

The contingency of a division of the States into two 
antagonistic groups is not contemplated. When the 
possibility of State combinations is touched on, it is 
chiefly with reference to the action of small and of large 
States respectively. In particular no hint is dropped as 
to the likelihood of the institution of slavery becoming 
a bond to unite the Southern States and a cause of quar- 
rel between them and the Northern. Yet slavery had 
given trouble in the Philadelphia Convention, and an 
opposition of Xorth and South grounded upon it soon 
emerged. 

Although the mischiefs of faction are dwelt on, noth- 
ing indicates that its embodiment in highly developed 
party systems, whose organizations might overshadow 
the legal government, had occurred to any one's mind. 
Still less, of course, is there any anticipation of the influ- 
ence to be exerted on politics by the distribution of 
offices. Xot till long afterwards were they treated as 
' spoils of war.' 

urge his party to vote (when the choice came before the House of Representa- 
tives) for Jefferson, his own bitter enem}-. What he thought of Burr, who, but 
for his intervention, would certainlj- have obtained the chief magistracy of the 
nation (and by whose hand he ultimately died), may be inferred from the fact that 
he preferred as President the man of whom he thus writes : ' I admit that his 
(Jefferson's) politics are tinctured with fanaticism ; that he is too much in earnest 
in his democracy ; that he has been a mischievous enemy to the principal meas- 
ures of our past administration ; that he is crafty and persevering in his objects ; 
that he is not scrupulous about the means of success, nor very mindful of truth ; 
and that he is a contemptible hypocrite. But, &c.' (Letter to James A. Bayard, 
Jan. i6, 1801.) 

After this it is superfluous, as it would be invidious, to dwell on the deficiencies 
of some recent Presidents or Presidential candidates. 

1 ' The private fortunes of the President and Senators, as they must all be 
American citizens, cannot possibly be sources of danger' {T/ie Federalist^ No. 
LI\0. 



HAMILTON AND TOCQUEVILLE 193 

III. Criticism of the Predictions of 1788. 

Let us now see which of these views and forecasts 
have been verified by the event. 

Of those put forth by the opponents of the Constitu- 
tion not one has proved true. The States are still 
strong, the President is not a despot, though for a time 
during the Civil War he came near being one, nor has 
he ever fallen under the influence of any European 
power. The House does not consist of the ' wealthy and 
well-born.' The larger States do not combine against 
nor press hardly on the smaller. No great country has 
had so few wars or indeed so few foreign complications 
of any kind^. The Senate is still often called 'an oli- 
garchy,' but this means only that it consists of compara- 
tively few persons, most of them wealthy, and that it has 
a strong corporate feeling in favour of the personal 
interests of each of its members. It is really as depend- 
ent on public opinion as the House, perhaps even more 
afraid of public opinion, and as directly the creature 
of party machinery, though less directly of popular 
election. 

One is surprised to find that of the many arrows of 
accusation levelled at the Constitution, all should have 
flown wide of the mark. 

The deeper insight and more exact thinking of Hamil- 
ton and Madison fastened upon most of the real and 
permanent weaknesses in popular government. Yet 
even they could not foresee the particular forms which 
those weaknesses would assume in the new nation. To 
examine in detail the eight points specified above would 
involve an examination of American history for a cen- 
tury. I shall therefore simply indicate in a word or two 
the extent to which, in each case, the alarms or predic- 
tions of The Federalist may be deemed well grounded. 

> Three wars since 1789 : that of 1812, that of 1845, and that of 1898. Every one 
of these might no doubt have been avoided wfith honour, and two of them savoured 
of aggression, but the same may be said of nearly all the wars of European 
States. 



194 HAMILTOX AXD TOCQUETILLE 

1. The spirit of faction has certainly, as Madison ex- 
pected, proved less intense over the large area of the 
Union than it did in the Greek republics of antiquity or 
in the several States from 1776 to 1789. On the other 
hand, the bonds of sympathy created by the Federal sys- 
tem have at times enabled one State to infect another 
with its own vehemence. But for South Carolina, there 
would have been no secession in 1861. Since 1880 the 
' demon of faction ' has been less powerful in the parties 
than at any previous date since the so-called ' Era of 
Good Feeling ' in 1820. 

2. Sudden popular impulses there have been. But 
finding a ready and constitutional expression in elec- 
tions, they do not induce a resort to arms, while the 
elaborate system of checks on legislation seldom allows 
them to result in the passing of dangerous measures by 
Congress. In some States the risk of bad laws is serious, 
but it is lessened by the provisions of the Federal Con- 
stitution as well as by the veto power of the State Gov- 
ernor and the restrictions of recent State Constitutions. 

3. The early history of the Union furnishes illustra- 
tions of feebleness and inconstancy in foreign policy, 
yet not greater than those which mark most monarchies. 
Royal caprice, or the influence of successive favourites, 
has proved more pernicious in absolute kingdoms or 
principalities than popular fickleness in republics. That 
the foreign policy of the United States was singularly 
consistent down till 1898, when it suddenly took an en- 
tirely ' new departure,' was not due to the Senate. It 
must be credited partly to the good sense of the people, 
partly to the fact that the position and interests of the 
nation prescribed certain broad and simple lines. 

4. Whatever may be thought of its handling of private 
bills, Congress was seldom prone to haste or reckless 
expenditure in legislation on public matters, until it 
passed the amazing Pensions Act of 1890. Nor has it 
given the country too many laws. It has been on the 
whole more blameable for what it neglects or postpones 



HAMILTON AND TOCQVEYILLE 195 

than for what it enacts. The censure is more true of the 
States, especially the newer Western States. 

5. The House of Representatives has doubtless sought 
to extend its sway at the expense of other depart- 
ments. Whether it has succeeded is a question on which 
competent observers in America itself differ; but the 
fact of their differing proves that the encroachments 
have not been considerable. Whenever the President is 
weak or unpopular, Congress seems to be gaining on 
the Executive Chief. When the latter is or seems 
strong, he can keep the Legislature at bay. 

6. In the struggle which never quite ceases, though 
it is often scarcely noticed, between the States and the 
Federal Government, the States have on the whole lost 
ground. Nor are the larger States practically more 
formidable than the small ones. The largest is small 
compared with the immense Union. No State would ' 
now venture to brave the Federal Judiciary as Georgia 
did, and for a time did successfully (1832), in one of the 
painful cases regarding the Cherokee Indians. 

7. The so-called Tyranny of the Majority, a subject 
too large to be fully examined here^, has not hitherto 
proved a serious evil in America. This, however, is due 
rather to the character and habits of the people and their 
institutions generally than to the mere extent and popu- 
lation of the Union, on which the Federalist writers relied. 

8. There has been some unwise Congressional legis- 
lation, especially in currency matters, and, of course, 
much more of unwise State legislation. But property 
is secure, and the sense of civic duty seems, on the whole, 
to be improving. 

It will appear from this examination, and from the 
fact (noted a few pages back) that some remarkable de- 
velopments which political life has taken never crossed 
the minds of the authors of The Federalist, that these 
wisest men of their time did not foresee what strike us 

1 The subject is discussed in the author's American CommonweaU/i, cha.p\, 
Ixxxiv and Ixxxv. 



196 HAMILTOX AND TOCQUETILLE 

to-day as the specially characteristic virtues and faults of 
American democracy. Neither the spoils system nor 
the system of party nominations by wire-pullers crossed 
their minds. They did not foresee the inordinate multi- 
plication of elections, nor the evils of confining eligibility 
for a seat in the legislature to a person resident in the 
electing district, nor the disposition to ' play down ' to 
the masses by seductive proposals. That the power 
which money might come to exert lay quite out of their 
view is not to be wondered at, for no large fortunes then 
existed. No student of history will deem that these 
omissions detract from their greatness, for history 
teaches nothing more plainly than the vanity of predic- 
tions in the realm of what we call the moral and political 
sciences, in religion, in ethics, in sociology, in govern- 
ment and politics. Deep thinkers help us when they un- 
fold those permanent truths of human nature which 
come everywhere into play. Historians help us when, 
by interpreting the past, they demonstrate what are the 
tendencies that have gone to create the present. Ob- 
servers keen enough to interpret the underlying pheno- 
mena of their own time may help us by showing which 
of the tendencies now at work are likely to become rul- 
ing factors in the near future. But beyond the near 
future — that is to say, beyond the lifetime of the genera- 
tion which already holds power — no trjie philosopher 
will venture. He may indulge his fancy in picturing the 
details of the remoter landscape ; but he knows that it 
is a region fit for fancy, not for science. In the works 
of great thinkers there are to be found some happy 
guesses about times to come ; but these are few indeed, 
compared with the prophecies whose worthlessness was 
so soon revealed that men forgot they had ever been 
made, or the dreams which, like those of Dante, idealized 
an impossible future from an irrevocable past. 

As regards the views of Hamilton and Aladison, who, 
be it remembered, do not present themselves as pro- 
phets, but as the censors of present evils which they 



HAMILTON AND TOCQUEYILLE I97 

are seeking to remedy, it may be added that the Consti- 
tution which they framed and carried checked some of 
these very evils {e.g. the unjust law-making and reckless 
currency experiments of the State Legislatures) ; and 
that it was obviously impossible till the Federal govern- 
ment had begun to work to say how the existing forces 
could adapt themselves to it. Hamilton remarks in one 
of his letters that he holds with Montesquieu that a/ ^ 
nation's form of government ought to be fitted to it as' 
a suit of clothes is fitted to its wearer 1. He would 
doubtless have added that one cannot make sure of the 
fit until the suit has been tried on. 

We must remember, moreover, that the causes which 
have aflfected the political growth of America are largely 
causes which were in 1788 altogether beyond human/ 
ken. The cotton gin, Napoleon's willingness to sell 
Louisiana, steam communications by water and land, 
Irish and German immigration, have swayed the course 
of that history ; but even the first of these factors had 
not risen over the horizon in that year, and the last did 
not become potent till halfway through the nineteenth 
century 2, 

What the sages of the Convention do show us are 
certain tendencies they discern in their contemporaries, 
viz. : — 

Recklessness and unwisdom in the masses, producing 
bad laws. 

Unwillingness to submit to or support a strong 
government. 

Abuse by the majority of its legal power over the 
minority. 

Indifiference to national as compared with local and 
sectional interests, and consequent preference of State 
loyalty to national loyalty. 

' ' I hold with Montesquieu that a government must be fitted to a nation as much! 
as a coat to the individual ; and consequently that what may be good at Philadel-I T~ 
phia may be bad at Paris and ridiculous at Petersburgh.' To Lafayette, Jan. 6, 1799. 

' The first cargo of cotton was sent from America to Europe in 1791, and the 
cotton gin invented in 1793. 



198 HAMILTON AXD TOCQUETILLE 

That each of these tendencies then existed, and might 
have been expected to work for evil, admits of no doubt. 
But if we ask x\merican history what it has to say about 
their subsequent course, the answer will be that the 
second and third tendencies have declined, and do not 
at present menace the public welfare, while the first, 
though never absent and always liable to marked recru- 
descence, as the annals of the several States prove, has 
done comparatively little harm in the sphere of national 
government. As to the fourth, which Hamilton seems 
to have chiefly feared, it ultimately took the form, not 
of a general centrifugal force, impelling each State to fly 
off from the system, but of a scheme for the separation 
of the Southern or slave-holding States into a separate 
Confederacy, and in this form it received, in 1865, a 
crushing and apparently final defeat^. 

IV. TOCQUEVILLE AXD HIS BoOK. 

Fifty-one years after the recognition of the indepen- 
dence of the United States, sixty-seven years before the 
beginning of the twentieth century, Alexis de Tocque- 
ville published his Democracy in America, one of the few 
treatises on the philosophy of politics which has risen to 
the rank of a classic. His book, therefore, stands rather 
further than halfway back between our own days and 
those first days of the Republic which we know from the 
writings of the Fathers, of Washington, Jefferson, 
Adams, Hamilton, Madison. It offers a means of mea- 
suring the changes that had passed on the country dur- 
ing the half-century from the birth of the Union to the 
visit of its most famous European critic, and again from 
the days of that critic to our own. 

It is a classic, and because it is a classic, one may 
venture to canvas it freely without the fear of seeming 

1 When we come to Tocqueville, we shall find him touching but lightly on the 
two first of the above tendencies (parth-, perhaps, because he attends too little to 
the State g-overnments), but emphasizing the third and fearing from the fourth 
the dissolution of the Union. 



HAMILTON AND TOCQUETILLE 199 

to detract from the fame of its author. The more one 
reads Tocqneville, the more admiration does one feel for 
the acuteness of his observation, for the dehcacy of his 
analysis, for the elegant precision of his reasonings, 
for the limpid purity of his style ; above all, for his love 
of truth and the elevation of his character. He is not 
only urbane, but judicial ; not only noble, but edifying.j 
There is perhaps no book of the generation to which hel 
belonged which contains more solid wisdom in a morel 
attractive dress. 

We have here, however, to regard the treatise, not 
as a model of art and a storehouse of ethical maxims, 
but as a picture and criticism of the government and 
people of the United States. And before using it as evi- 
dence of their condition seventy years ago, we must ap- 
praise the reliance to be placed upon it i. 

First let it be observed that not only are Tocqueville's 
descriptions of democracy as displayed in America no 
longer true in many points, but that in certain points 
they never were true. That is to say, some were true of 
America, but not of democracy in general, while others 
were true of democracy in general, but not true of Amer- 
ica. It is worth while to attempt to indicate the causes 
of such errors as may be discovered in his picture, be- 
cause they are errors which every one who approaches 
a similar task has to guard against. Tocqueville is not 
widely read in the United States, where the scientific, 
•historical, and philosophical study of the institutions of 
the country, apart from the legal study of the Constitu- 
tion, is of comparatively recent growth. He is less read 
than formerly in England and even in France. But his 
views of the American government and people have so 
passed into the texture of our thoughts that we cannot 
shake ofif his influence, and, in order to profit by it, are 
bound to submit his conclusions and predictions to a 
searching though always respectful examination. 

^ 1 Some interesting- remarks upon Tocqueville's tour in America and upon his 
views of American affairs may be found in President Oilman's Introduction to a 
recent edition (1898) of the English translation of Tocqueville's book. 



200 HAMILTON AND TOCQVETILLE 

The defects of the book are due to three causes. He 
had a strong and penetrating intellect, but it moved by 
preference in the a priori or deductive path, and his 
power of observation, quick and active as it was, did 
not lead but followed the march of his reasonings. It 
will be found, when his method is closely scrutinized, 
that the facts he cites are rather the illustrations than 
the sources of his conclusions. He had studied America 
carefully and thoroughly. But he wanted the necessary 
preparation for that study. His knowledge of England, 
while remarkable in a native of continental Europe, was 
not sufficient to show him how much in American insti- 
tutions is really English, and explainable only from Eng- 
lish sources. 

He wrote about America, and meant to describe it 
iully and faithfully. But his heart was in France, and 
the thought of France, never absent from him, uncon- 
sciously coloured every picture he drew. It made him 
think things abnormal which are merely un-French ; it 
made him attach undue importance to phenomena which 
seemed to explain French events or supply a warning 
against French dangers. 

He reveals his method in the introduction to his book. 
He draws a fancy sketch of a democratic people, based 
on a few general principles, passes to the condition of 
France, and then proceeds to tell us that in America he 
went to seek the type of democracy — democracy pure 
and simple — in its normal shape. 

' J'avoue que dans I'Amerique, j'ai vu plus que I'Amer- 
ique ; j'y ai cherche une image de la democratic elle- 
meme, de ses penchants, de son caractere, de ses pre- 
juges, de ses passions.' 

Like Plato in the Republic, he begins by imagining 
that there exists somewhere a type or pattern of demo- 
cracy, and as the American Republic comes nearest to 
this pattern, he selects it for examination. He is aware, 
of course, that there must be in every country and peo- 
ple many features special to the country which reappear 



HAMILTON AND TOCQUEYILLE 201 

in its government, and repeatedly observes that this or 
that is pecuHar to America, and must not be taken as 
necessarily or generally true of other democracies. But 
in practice he underrates the purely local and special fea- 
tures of America, and often, forgetting his own scientific 
cautions, treats it as a norm for democracy in general. 
Nor does he, after finding his norm, proceed simply to 
examine the facts and draw inferences from them. In 
many chapters he begins by laying down one or two 
large principles, he develops conclusions from them, and 
then he points out that the phenomena of America con- 
form to these conclusions. Instead of drawing the cha-1 
racter of democracy from the aspects it presents in 
America, he arrives at its character by a sort of intuitive! 
method, and uses those aspects only to point and enforce* 
propositions he has already reached. It is not demo- 
cracy in America he describes, but his own theoretic 
view of democracy illustrated from America. He is ad- 
mirably honest, never concealing or consciously evading 
a fact which he perceives to tell against his theories. 
/But being already prepossessed by certain abstract ' 
/ principles, facts do not fall on his mind like seeds on 
) virgin soil. He is struck by those which accord with, he 
is apt to ignore those which diverge from, his preconcep- 
tions. Like all deductive reasoners, he is peculiarly ex- 
posed to the danger of pressing a principle too far, oi 
seeking to explain a phenomenon by one principle onlyi 
when it is perhaps the result of an accidental concur-! 
rence of several minor causes. The scholasticism we ob- 
serve in him is due partly to this deductive habit, partly 
to his want of familiarity with the actualities of politics. 
An instance of it appears in his tendency to overestimate 
the value of constitutional powers and devices, and to 
forget how often they are modified, almost reversed, in 
practice by the habits of those who use them. Though 
no one has more judiciously warned us to look to the 
actual working of institutions and the ideas of the men 
who work them rather than to their letter, he has him- 



202 HAMILTOX AXD TOCQUETILLE 

self failed to observe that the American Constitution 
tends to vary in working from its legal theory, and the 
name Legislature has prevented him, like so many other 
foreign observers, from seeing in the English Parlia- 
ment an executive as well as a law-making body. 

In saying that he did not know England, I fully admit 
that his knowledge of that country and its free govern- 
ment was far beyond the knowledge of most cultivated 
foreigners. He had studied its history and had gathered 
from his reading the sentiments of its aristocracy and 
of its literary men. But he did not know the ideas and 
habits of the English middle class, with whom the Ameri- 
cans of his time might better have been compared, and 
he was not familiar — as hoAV could a stranger be? — 
with the details of English politics and the working of 
the English judicial system. Hence he has failed to 
grasp the substantial identity of the American people 
with the English. He perceives that there are many 
and close resemblances, and traces much that is Ameri- 
can to an English source. He has seen and described 
with perfect justness and clearness the mental habits of 
the English and American lawyer as contrasted with 
those of the French lawyer. But he has not grasped, as 
perhaps no one but an Englishman or an American can 
grasp, the truth that the American people of 1830 was 
a branch of the English people, modified in some direc- 
tions by the circumstances of its colonial life and its 
more popular government, but in essentials the same. 
Hence much that was merely English appeared to 
Tocqueville to be American or democratic. The func- 
tions of the judges, for instance, in expounding the Con- 
stitution (whether of the Federation or of a State) and 
disregarding a statute which conflicts therewith, the re- 
sponsibility of an official to the ordinary courts of the 
land, the co-existence of laws of a higher and lower 
degree of authority, seem to him to be novel and brilliant 
inventions instead of mere instances of general doctrines 
of English law, adapted to the circumstances of a colony 



HAMILTON AND TOCQUETILLE 203 

dependent on a home Government, or of a State partially 
subordinated to a Federal Government. The absence 
of what the French call ' Administration,' and the dis- 
position to leave people to themselves, which strike him, 
would not surprise an Englishman accustomed to the like 
freedom. Much that he remarks in the mental habits of 
the ordinary American, his latent conservatism for in- 
stance, his indifference to amusement as compared with 
material comfort, his commercial eagerness and ten- 
dency to take a commercial view of all things, might 
have been just as well remarked of the ordinary middle- 
class Englishman, and had nothing to do with a demo- 
cratic government. Other features, which he ascribes 
to this last-named cause, such as habits of easy social 
intercourse, the disposition to prize certain particular 
virtues, the readiness to give mutual help, are equally 
attributable to the conditions of life that existed among 
settlers in a wild country where few persons were raised 
by birth or wealth above their fellows, and every one had 
need of the aid of others — conditions whose results re- 
mained in the temper of the people even when the com- 
munity had passed into another phase, a phase in which 
inequalities of wealth were already marked, and tempta- 
tions had begun to appear which did not beset the Puri- 
tans of the seventeenth century. 

It is no reproach to this great author that France 
formed to him the background of every picture whose 
foreground was the New World. He tells us frankly in 
the Introduction that the phenomena of social equality, 
as they existed in France, and the political consequences 
to be expected from them, filled his mind when he ex- 
amined the institutions of America ; he hoped to find 
there lessons by which France might profit : ' J'ai voulu 
y trouver des enseignements dont nous puissions pro- 
fiter.' But with this purpose before him, he could hardly 
avoid laying too much stress on points which seemed 
to have instruction for his own countrymen, and from 
fancying those things to be abnormal, or at least spe- 



204 HAMILTON AND TOCQVEYILLE 

daily noteworthy, which stood contrasted with the cir- 
cumstances of France. Tocqueville is, among eminent 
French writers, one of the least prone to assume the 
ways and ideas of his own country to be the rule, and 
those of another country the exception ; yet even in him 
the tendency lurks. There is more than a trace of it in 
his surprise at the American habit of using without abus- 
ing political associations, and at the disposition of 
Legislatures to try experiments in legislation, a disposi- 
tion which struck him chiefly by its contrast with the im- 
mutability which the Code of the First Empire seemed 
to have stamped upon the private law of France. 

His constant reference to France goes deeper than 
the method of the book. It determines his scope and 
aim. The Democracy in America is not so much a politi- 
cal study as a work of edification. It is a warning to 
France of the need to adjust her political institutions to 
her social condition, and above all to improve the tone 
of her politics, to_create a moral and religious basis for 
her national life, to erect a new fabric of social doctrine, 
in the place of that which, already crumbling, the Revo- 
lution had overthrown. We must not, therefore, expect 
to find in him a complete description and criticism, such 
as a German would have given, of the government of 
America in all its details and aspects. To note this is 
not to complain of the book. What Tocqueville has pro- 
duced is more artistic, and possibly more impressive 
than such a description would have been, as a landscape 
gives a juster notion of scenery than a map. His book 
is permanently valuable, because its reflections and ex- 
hortations are applicable not merely to the Frenchmen 
of sixty-five years ago, but to mankind generally, since 
they touch upon failings and dangers permanently in- 
herent in political society. Let it only be remembered 
that, in spite of its scientific form, it is really a work of 
art quite as much as a work of science, and a work suf- 
fused with strong, though carefully repressed, emotion. 

The best illustration I can give of these tendencies in 



HAMILTON AND TOCQUETILLE 205 

our author will be found in a comparison of the first part 
of the book, published in 1834, and now included in the 
first and second volumes of recent editions, with the 
second part published in 1840, and now forming the third 
volume. In the first part the author keeps near his facts. 
Even when he has set out on the a priori road he pre- 
sently brings his theory into relation with American 
phenomena : they give substance to, and (so to speak) 
steady the theory, while the theory connects and illu- 
mines them. But in the second part (third volume) he 
soars far from the ground, and is often lost in the clouds 
of his own sombre meditation. When this part was writ- 
ten, the direct impressions of his transatlantic visit had 
begun to fade from his mind. With all his finesse and 
fertility, he had neither sufficient profundity of thought, 
nor a sufficient ample store of facts gathered from his- 
tory at large, to enable him to give body and substance to 
his reflections on the obscure problems wherewith he at- 
tempts to deal ^. Hence, this part of the book is not so 
much a study of American democracy as a series of 
ingenious and finespun abstract speculations on the fea- 
tures of equality and its results on modern society and 
thought, speculations which, though they have been 
singled out for admiration by some high judges, such as 
Ampere and Laboulaye, will appear to most readers 
overfanciful, overconfident in their efifort to construct a 
general theory applicable to the infinitely diversified 
facts of human society, and occasionally monotonous in 
their repetition of distinctions without differences and 
generalities too vague, perhaps too hollow, for practical 
use. 

How far do these defects of Tocqueville's work affect 
its value for our present purpose, that of discovering 
from it what was the condition, political, social, intel- 
lectual, of the United States in 1833, and what the forces 

1 Sainte-Beuve remarks of him, ' Tl a commence k penser avant d'avoir rien 
appris : ce qui fait qu'il a quelquefois pens^ creux.' Thiers once said, in the Cham- 
ber, ' Quand je considfere intuitivement, comma dirait M. de Tocqueville.' 



206 HAMILTON AND TOOQVEYILLE 

that were then at work in determining the march of the 
nation and the development of its institutions ? 

It is but sHghtly that they impair its worth as a record 
of facts. Tocqueville is so careful and so unprejudiced 
an observer that I doubt if there be a single remark of 
his which can be dismissed as either erroneous or super- 
ficial. There is always some basis for every statement he 
makes. But the basis is occasionally too small for the 
superstructure of inference, speculation, and prediction 
which he rears upon it. To borrow an illustration from 
chemistry, his analysis is always right so far as it is quali- 
tative, sometimes wrong where it attempts to be quanti- 
tative. The fact is there, but it is perhaps a smaller fact 
than he thinks, or a transient fact, or a fact whose im- 
portance is, or shortly will be, diminished by other facts 
which he has not adequately recognized. 

When we pass from description to argument he is a 
less safe guide. By the light of subsequent experience 
we can perceive that he mistook transitory for perma- 
nent causes. Many of the phenomena which he ascribes 
to democracy were due only to the fact that large for- 
tunes had not yet grown up in America, others to the 
absence, in most parts of the country, of that higher 
education and culture which comes with wealth, leisure, 
and the settlement of society. I have already observed 
that he sometimes supposes features of American poli- 
tics to be novel and democratic which are really old and 
English ; that he does not allow sufficiently for the im- 
print which colonial life had left on the habits and ideas 
of the people, an imprint which, though it tends to wear 
ofif with time, is yet also modified into something which, 
while 3^ou may call it democratic, remains different from 
the democracy of an old European country, and is not 
an index to the character of democracy in general. 

It need hardly be said that the worth of a book like 
his is not to be measured by the number of flaws which 
can be discovered under the critic's microscope. Even 
a sovereign genius like Aristotle cannot be expected to 



HAMILTON AND TOCQVETILLE 207 

foresee which of the influences he discerns will retain 
their potency : it is enough if his view is more piercing 
and more comprehensive than that of his greatest con- 
temporaries, if his record shows the high-water mark of 
the learning and philosophy of the time. Had history fal- 
sified far more of Tocqueville's predictions than she has 
done, his work would still remain eminently suggestive 
and stimulating. And it is edificatory not merely be- 
cause it contains precepts instinct with the loftiest mo- 
rality. It is a model of that spirit of fairness and justice, 
that love of pure truth which is conspicuously necessary, 
and not less conspicuously difficult, in the discussion, 
even the abstract discussion, of the problems of political 
philosophy. Few books inspire a higher respect for 
their writer. 

V. Tocqueville's View of the United States. 

Before we examine the picture of the social and politi- 
cal phenomena of America which Tocc^ueville has drawn, 
let us see what were the chief changes that had passed 
on the territory of the Union, on its material resources, 
on the habits and ideas of the people, during the 
forty-six years that elapsed from the publication of the 
Federalist to that of the Democratic en Amcriquc. 

The territory of the United States had been extended 
to include the whole valley of the Mississippi, while to 
the north-west it stretched across the Rocky Mountains 
as far as the Pacific. All beyond the Missouri was still 
wilderness, much of it wholly unexplored, but to the 
east of the Mississippi there were now twenty-four 
States with an area of 2,059,043 square miles and a popu- 
lation of fourteen millions. The new Western States, 
though rapidly increasing, were still so raw as to exer- 
cise comparatively little influence on the balance of na- 
tional power, which vibrated between the free Northern 
and the Southern Slave States. Slavery was not an 
immediately menacing question, for the first wound it 



208 HAMILTON AND TOCQVEVILLE 

made had been skinned over, so to speak, by the Mis- 
souri Compromise of 1820; but it was evidently^preg- 
nantwit h futur e trouble, for the number of slaves was 
rapidly increasing, and the slaveholders were already 
resolved to retain their political influence by the creation 
of new slave States. The great Federalist party had 
vanished, and the Republican-Democratic party, which 
had triumphed over it, had just been split into several 
bitterly hostile factions. Questions of foreign policy 
were no longer urgent, for Europe had ceased to menace 
America, who had now no neighbours on her own conti- 
nent except the British Crown on the north and the 
Mexican Republic on the south and west. The protec- 
tive tariff and the existence of the United States Bank 
were the questions most agitated, but the main divid- 
ing party lines were still those which connected them- 
selves w4th the stricter or looser interpretation of the 
Federal Constitution — that is to say, they were ques- 
tions as to the extent of Federal power on the one hand, 
\a.s to the rights of the States on the other. New Eng-' 
land was still Puritan and commercial, with a bias 
towards protective tarifTfs,the South still agricultural, and 
in favour of free trade. The rule of the masses had made 
its greatest strides in New York, the first, among the 
older States, which introduced the new methods of party 
organization and which thoroughly democratized her 
Constitution 1. Everywhere property qualifications for 
office or the electoral franchise were being abolished, 
and even the judges formerly nominated by the State 
Governor or chosen by the State Legislature were be- 
ginning to be elected by manhood suffrage and for terms 
of years. In fact a great democratic wave was passing 
over the country, sweeping away the old landmarks, de- 
stroying the respect for authority, casting office and 
power more and more into the hands of the humbler 
classes, and causing the withdrawal from public life of 
men of education and refinement. State feeling was still 

1 The process of democratization was completed by the Constitution of 1846. 



HAMILTON AND TOCQUEVILLE 209 

Strong, especially in the South, and perhaps stronger 
than national feeling, but the activity of commerce and 
the westward movement of population were breaking- 
down the old local exclusiveness, and those who saw- 
steamboats plying on the Hudson and heard that locomo- 
tive engines were beginning to be run in England, might 
have foreseen that the creation of more easy, cheap, and 
rapid communications would bind the sections of the 
country together with a new and irresistible power. The 
time was one of great commercial activity and great ap- 
parent prosperity ; but large fortunes were still few, 
while in the general pursuit of material objects science, 
learning, and literature had fallen into the background. 
Emerson was still a young Unitarian minister, known 
only to the circle of his own friends. Channing was just 
rising into note ; Longfellow and Hawthorne, Prescott 
and Ticknor had not begun to write. Washington Irving 
was one of the few authors whose names had reached 
Europe. How disagreeable the manners of ordinary 
people (for one must of course except the cultivated 
circles of Boston and Philadelphia) seemed to the Euro- 
pean visitor may be gathered from the diaries of Richard 
Cobden and Sir Charles Lyell, who travelled in America 
a year or two after Tocqueville. There was a good deal 
of ability among the ruling generation of statesmen — 
the generation of 1787 was just dying out with Madison 
— but only three names can be said to have survived in 
the world's memory, the names of three party leaders 
who were also great orators, Clay, Calhoun, and 
Webster 1. 

In those days America was a month from Europe and _^ 
comparatively little affected by Europe. Heripeople 
walke(i^in a vain conceit of their own greatness and 
freedom, and scorned instruction from the efifete mo- 
narchies of the Old World, which in turn repaid them 

1 To none of whom, oddly enough, does Tocqueville refer. He is singularly 
sparing in his references to individuals, mentioning no one except President Jack- 
son for blame and Livingston (author of the Louisiana Code and Secretary of 
State, 1831-3) for praise. 



210 HAMILTON ASD TOCQUETILLE 

with contemptuous indifference. Neither continent had 
reahzed how closely its fortunes were to be inter- 
woven with those of the other by trade and the move- 
ments of population. Xo wheat, no cattle were sent 
across the Atlantic, nor had the flow of immigration 
from Ireland, much less from Central Europe, as yet 
begun. 

The United States of 1834 had made enormous ad- 
vances in material prosperity. Already a great nation, 
it could become a great power as soon as it cared to 
spend money on fleets and armies. The Federal govern- 
ment had stood the test of time and of not a few storms. 
Its component parts knew their respective functions, 
and worked with less friction than might have been ex- 
pected. The sense of national unity, powerfully stimu- 
lated by the war of 1812, was still growing. But the 
level of public life had not risen. It was now rather 
below than above that of average private society. Even 
in the realm of morality there were strange contrasts. 
A puritan strictness in some departments of conduct and 
a universal recognition of the sanctions of religion co- 
existed in the North with some commercial laxity, while 
the semi-civilized South, not less religious and valuing 
itself on its high code of honour, was disgraced by the 
tolerance accorded to duels and acts of murderous vio- 
lence, not to speak of the darker evils which slavery- 
brought in its train. As respects the government of 
States and cities, democratic doctrines had triumphed 
all along the line. The masses of the people had now 
realized their power, and entered into the full fruition of 
it. They had unlimited confidence in their wisdom and 
virtue, and had not yet discovered the dangers incidental 
to the rule of numbers. The wise elders, or the philo- 
sophic minds who looked on with distrust, were either 
afraid to speak out, or deemed it hopeless to try to stem 
the flowing tide. They stood aside (as Plato says) under 
the wall out of the storm. The party organizations had 
just begun to spread their tough yet flexible network 



HAMILTON AND TOCQUETILLE 211 

over the whole country ; and the class of professional 
politicians, at once the creator and the creature of such 
organizations, was already formed. The offices had, three 
years before, been proclaimed to belong to the victors 
as spoils of war, but few saw to what consequences this 
doctrine was to lead. I will not say that it was a period 
of transition, for that is true of every period in America, 
so fast do events move even in the quietest times ; but 
it was a period when that which had been democratic 
theory was passing swiftly into democratic practice, 
when the seeds sown long ago by Jefferson had ripened 
into a waving crop, when the forces which in every so- 
ciety react against extreme democracy were unusually 
weak, some not yet developed, some afraid to resist the 
stream. 



VI. Tocqueville's Impressions and Prophecies. 

Let us see what were the impressions which the Amer- 
ica of 1832 made on the mind of Tocqueville. I do not 
pretend to summarize his accovmt, which every student 
ought to read for himself, but shall be content with pre- 
senting the more salient points that ought to be noted 
in comparing 1832 with 1788 on the one hand, and 1900 
on the other. 

He is struck by the thoroughness with which the prin- 
ciple of the sovereignty of the people is carried out. 
Seventy years ago this principle was far from having 
obtained its present ascendency in Western Europe. 
In America, however, it was not merely recognized in 
theory, but consistently applied through every branch 
of local, State, and National government. 

He is impressed by the greater importance to ordi- 
nary citizens of State government than of Federal gov- 
ernment, and their warmer attachment to the former 
than to the latter. The Federal government seems com- 
paratively weak, and in case of a conflict between the 



212 HAMILTON AND T0CQUE7ILLE 

two powers, the loyalty of the people would be given 
rather to the State ^. 

He finds the basis of all American government in the 
'commune,' i.e. in local government, the ultimate unit 
of which is in New England the township, in the South- 
ern and Middle States the county. It is here that the 
bulk of the work of administration is done, here that 
the citizens learn how to use and love freedom, here that 
the wonderful activity they display in public affairs finds 
its chief sphere and its constant stimulus. 

The absence of what a European calls ' the administra- 
tion ' is remarkable. Public work is divided up between 
a multitude of petty and unrelated local officials : there 
is no ' hierarchy,' no organized civil service with a sub- 
ordination of ranks. The means employed to keep offi- 
cials to their work and punish offences are two — fre- 
quent popular election and the power of invoking the 
ordinary courts of justice to obtain damages for negli- 
gence or unwarranted action. But along with the ex- 
treme 'administrative decentralization ' there exists a no 
less extreme ' governmental centralization,' that is to 
say, all the powers of government are collected into one 
hand, that of the people, the majority of the voters. This 
majority is omnipotent ; and thus authority is strong, 
capable of great efforts, capable also of tyranny. Hence 
the value of local self-government, which prevents the 
abuse of power by a central authority : hence the neces- 
sity for this administrative decentralization, which atones 
for its want of skill in details by the wholesome influence 
it exerts on the character of the people. 

The judges enjoy along with the dignity of their Euro- 
pean brethren the singular but most salutary power of 
' declaring laws to be unconstitutional,' and thus they 
serve to restrain excesses of legislative as well as of ex- 
ecutive authority. 

The President appears to our author to be a com- 

1 His insistence on this point makes it all the more strange that he does not give 
any description of a State as a commonwealth, nor characterize the general fea- 
tures of its government. 



HAMILTON AND TOCQUEVILLE 213 

paratively weak official. No person, no group, no party, 
has much to hope from the success of a particular can- 
didate at a Presidential election, because he has not 
much to give avvay[!]. The elective system unduly 
weakens executive authority, because a President who 
approaches the end of his four years' term feels himself 
feeble, and dares not take any bold step: while the com- 
ing in of a new President may cause a complete change 
of policy. His re-eligibility further weakens and abases 
him, for he must purchase re-election by intrigue and an 
unworthy pandering to the desires of his party. It in- 
tensifies the characteristic fault of democratic govern- 
ment, the predominance of a temporary majority. 

The Federal Supreme Court is the noblest product of 
the wisdom of those who framed the Federal Constitu- 
tion. It keeps the whole machine in working order, pro- 
tecting the Union against the States, and each part of 
the Federal government against the aggressions of the 
others. The strength of the Federation, naturally a 
weak form of government, lies in the direct authority 
which the Federal courts have over the individual citi- 
zen : while the action of these Courts, even against a 
State, gives less offence than might be expected because 
they do not directly attack its statutes, but merely, at the 
instance of an individual plaintifif or defendant, secure to 
him rights which those statutes may have incidentally 
infringed. 

The Federal Constitution is much superior to the 
State Constitutions ; the Federal Legislature, Executive 
and Judiciary, are all of them more independent of the 
popular majority, and freer in their action than the cor- 
responding authorities in the several States. Similarly 
the Federal government is better than those of the 
States, wiser, more skilful, more consistent, more firm. 

The day of great parties is past : there is now a feverish 
agitation of small parties and a constant effort to create 
parties, to grasp at some principle or watchword under 
which men may group themselves, probably for selfish 



214 EAMILTOX AXD TOCQUETILLE 

ends. Self-interest is at the bottom of the parties, yet 
aristocratic or democratic sentiment attaches itself to 
each of them, that is to say, when a practical issue arises, 
the old antithesis of faith in the masses and distrust of 
the masses reappears in the view which men and parties ^ 
taT<e of it. The rich mix little in politics. Secretly dis- 
gusted at the predominance of the crowd, they treat \, 
their shoemaker as an equal when they meet him on the 
street, but in their luxurious homes lament the vulgarity 
of public life and predict a bad end for democracy. 

Xext to the people, the greatest power in the country 
is the press : yet it is less powerful than in France, be- 
cause the number of journals is so prodigious, because 
they are so poorly written, because there is no centre 
like Paris. Advertisements and general news occupy 
far more of their space than does political argument, and 
in the midst of a din of opposing voices the ordinary 
citizen retains his dull fixity of opinion, the prejudices of 
his s^t or party. 

A European is surprised, not only at the number of 
voluntary associations aiming at public objects, but at 
the tolerance which the law accords to them. They are 
immensely active and powerful, and do not threaten 
public security as they would in France, because they 
admit themselves, by the very fact of their existence, to 
represent a minority of voters, and seek to prevail by 
force of argument and not of arms. 

Universal suffrage, while it gives admirable stability 
to the government, does not, as people in Europe expect 
that it will, bring the best men to the top. On the con- 
trary, the governors are inferior to the governed^. The 
best men do not seek either office or a seat in the House 
of Representatives, and the people, without positively 
hating the ' upper classes,' do not like them; and care- 

1 This is a common remark of visitors to America, but it arises from their mis- 
taking- the people they see in society for 'the governed' in general. They go 
carrying introductions to rich or educated people : if they mixed with the masses 
they would form a different notion of ' the governed,' as Tocqueville rather oddly 
calls the ordinary citizens. 



HAMILTON AND TOCQUETILLE 215 

fully keep them out of power. ' II ne craint point les 
grands talents, mais il les goute peu.' 

The striking inferiority of the House to the Senate 
is due to the fact that the latter is a product of double 
election, and it is to double election that democracies 
must come if they will avoid the evils inseparable from 
placing political functions in the hands of every class of 
the people ^. 

American magistrates are allowed a wider arbitrary 
discretion than is common in Europe, because they are 
more constantly watched by the sovereign people, and 
are more absolutely at their mercy -. 

Every office is, in America, a salaried office ; nor can 
anything be more conformable to the spirit of a demo- 
cracy. The minor offices are, relatively to Europe, well 
paid, the higher ones ill paid. Nobody wears any dress 
or displays any insignia of office ^. 

Administration has both an unstable and an unscien- 
tific character. Few records are kept of the acts of 
departments : little information is accumulated : even 
original documents are neglected. Tocqueville was 
sometimes given such documents in answer to his 
queries, and told that he might keep them. The con- 
duct of public business is a hand to mouth, rule of thumb 
sort of affair '*. 

Not less instability reigns in the field of legislation. 
Laws are being constantly changed; nothing remains 
fixed or certain ^. 

1 It is surprising that Tocqueville should have supposed this to be the cause of 
the excellence he ascribes to the Senate, considering that the more obvious, as well 
as the true, explanation is to be found in the fact that the wider powers and longer 
term of the Senate made the ablest men seek entrance to it. 

2 The only instance given of this is in the discretion allowed to the officers of the 
New England townships, whose functions are, however, unimportant. The state- 
ment cannot have been generally true. 

3 This remained true till very recent years as regards public officials, save and 
except the Judges of the Supreme Court when sitting at Washington. But lately 
the Supreme Court Judges of some States have begun to wear gowns. 

* This has ceased to be true in Federal administration, and in that of the more 
advanced States. 

6 Tocqueville does not say whether he intends this remark to apply to State legis- 
lation only or to Federal legislation also. He quotes dicta of Hamilton, Madison, 
and Jefferson to the same effect, but these testimonies, or most of them, refer to a 



216 HAMILTON ASD TOCQUETILLE 

It is a mistake to suppose that democratic govern- 
ments are specially economical. They are parsimonious 
in salaries, at least to the higher oiBcials, but they spend 
freely on objects beneficial to the mass of the people, 
such as education, while the want of financial skill in- 
volves a good deal of waste. You must not expect 
economy where those who pay the bulk of the taxes are 
a mere fraction of those who direct their expenditure. 
If ever America finds herself among dangers, her taxa- 
tion will be as heavy as that of European monarchies. 

There is little bribery of voters, but many charges 
against the integrity of politicians. Now the corruption 
of the ' governors ' is worse than that of the ' governed,' 
for it lowers the tone of public morals by presenting 
the spectacle of prosperous turpitude. 

The American democracy is self-indulgent and self- 
complacent, slow to recognize, still more slow to correct, 
its faults. But it has the unequalled good fortune of 
being able to commit reparable errors (la faculte de faire 
des f antes reparables). It can sin with impunity. 

It is eminently ill-fitted to conduct foreign policy. 
Fortunately it has none. 

The benefits which American society derives from its 
democratic government are summed up as follows : — 

As the majority make the laws, their general ten- 
dency, in spite of many errors in detail, is to benefit the 
majority, because though the means may sometimes be 
ill chosen, the end is always the same. Hence the coun- 
try prospers. 

Every one is interested in the welfare of the country, 
because his own welfare is bound up with it. This 
patriotism may be only an enlarged egotism, but it is 
powerful nevertheless, for it is a permanent sentiment, 
independent of transient enthusiasms. Its character ap- 

time anterior to the creation of the Federal Constitution. If it is true that State 
laws were being constantly changed in 1832, this can have been true only of ad- 
ministrative statutes, not of private law generally. One is tempted to believe that 
Tocqueville was unconsciously comparing America with France, where the Code 
has arrested legislation to an extent surprising to an English observer. 
22 



HAMILTON AND TOCQVEVILLE 217 

pears in the childish intolerance of criticism which the 
people display. They will not permit you to find fault 
with any one of their institutions or habits, not even if 
you praise all the rest ^. 

There is a profound respect for every political right, 
and therefore for every magistrate, and for the authority 
of the law, which is the work of the people themselves. 
If there be exceptions to this respect, they are to be 
found among the rich, who fear that the law may be 
made or used to their detriment. 

The infinite and incessant activity of public life, the 
responsibilities it casts on the citizen, the sense of his 
importance which it gives him, have stimulated his whole 
nature, and made him enterprising in all private affairs 
also. Hence, in great measure, the industrial prosperity 
of the country. Democracy effects more for the material 
progress of a nation than in the way of rendering it great 
in the arts, or in poetry, or in manners, or in elevation 
of character, or in the capacity for acting on other na- 
tions and leaving a great name in history. 

We now come to the darker side of the picture. In 
democracies, the majority is omnipotent, and in Amer- 
ica the evils hence flowing are aggravated by the short- 
ness of the term for which a legislature is chosen, by the 
weakness of the Executive, by the incipient disposition 
to choose even the judges by popular vote, by the notion 
imiversally accepted that the majority must be right. 
The majority in a legislature being unchecked, laws are 
hastily made and altered, administration has no perma- 
nence, officials are allowed a dangerously wide range 
of arbitrary authority. There is no escape from the 
tyranny of the majority. It dominates even thought, 
forbidding, not indeed by law, but through social penal- 
ties no less effective than legal ones, the expression of 
any opinion displeasing to the ordinary citizen. In the- 

' Every one knows how frequently European visitors used to comment upon 
this American trait. It is now much less noticeable than formerly. I can even say 
from experience that it has sensibly diminished since 1S70. 



218 HAMILTON AND TOCQVEYILLE 

ology, even in philosophy, one must beware of any di- 
vergence from orthodoxy. No one dare tell an unwel- 
come truth to the people, for it will receive nothing but 
incense. Such repression sufficiently explains the ab- 
sence of great writers and of great characters in public 
life. It is not therefore of weakness that free govern- 
ment in America will ever perish, but through excess of 
strength, the majority driving the minority to despair 
and to arms. 

There are, however, influences which temper the des- 
potism of the majority. One is the existence of a 
strong system of local self-government, whereby nearly 
all administration is decentralized. Another is the power 
of the lawyers, a class ever5nvhere disposed to maintain 
authority and to defend that which exists, and specially 
' so disposed in England and America because the law 
which they study and practise is founded on precedents 
and despises abstract reason. A third exists in the jury, 
and particularly the jury in its action in civil causes, for 
it teaches the people not only the regular methods of 
law and justice, but respect for law and for the judges 
who administer it. 

Next we come to an enumeration of the causes which 
maintain republican government. They are, over and 
above the constitutional safeguards already discussed, 
the following : — 

The absence of neighbouring States, and the conse- 
quent absence of great wars, of financial crises^, of in- 
vasions or conquests. How dangerous to republics is 
the passion for military glory is shown by the two elec- 
tions of General Jackson to be President, a man of 
violent temper and limited capacity, recommended by 
nothing but the memory of his victory at New Orleans 
twenty years before ^. 

1 This observation seems strange indeed to any one who remembers the com- 
mercial history of the United States since the great crisis of 1838. 

2 Jackson's popularity began with his military exploit : but his hold on the peo- 
ple was due to other causes also. His election coincided with the rise of the great 
democratic wave already referred to. 



HAMILTON AXD TOCQUEVILLE 219 

The absence of a great capital. 

The material prosperity of the country, due to its im- 
mense extent and natural resources, which open a 
boundless field in which the desire of gain and the love 
of independence may gratify themselves and render the 
vices of man almost as useful to society as his virtues. 
The passions which really agitate America are commer- 
cial, not political. 

The influence of religion. American Protestantism is 
republican and democratic ; American Catholicism no 
less so ; for Catholicism itself tends to an equality of con- 
ditions, since it treats all men aHke. The Catholic clergy 
are as hearty republicans as any others. 

The indirect influence of religion on manners and mo- 
rality. Nowhere is marriage so much respected and the 
relations of the sexes so well ordered. The universal 
acceptance of Christianity, an acceptance which imposes 
silence even on the few sceptics who may be supposed 
to exist there as everywhere, steadies and restrains 
men's minds. ' No one ventures to proclaim that every- 
thing is permissible in the interests of society. Impious 
maxim, which seems to have been invented in an age of 
liberty in order to give legitimacy to all tyrants to come.' 
The Americans themselves cannot imagine liberty with- 
out Christianity. And the chief cause why religion is so 
powerful among them is because it is entirely separated 
from the State i. 

The intelligence of the people, and their education, 
but especially their practical experience in working their 
local politics. However, though everybody has some ed- 
ucation, letters and culture do not flourish. The Ameri- 
cans regard literature properly so called with disfavour : 
they are averse to general ideas. They have no great his- 
torian, not a single poet, legal commentators but no 
publicists, good artisans but very few inventors [ !] 

1 I do not profess to summarize in these few lines all that Tocqueville says of 
the character and influence of Christianity in the United States, for he devotes 
many pages to it, and they are among the wisest and most permanently true that 
he has written. 



220 HAMILTON AND TOCQUEVILLE 

Of all these causes, the most important are those 
which belong to the character and habits of the people. 
These are infinitely more important sources of well- 
being than the laws, as the laws are in turn more im- 
portant than the physical conditions i. 

Whether democracy will succeed in other parts of the 
world is a question which a study of America does not 
enable the observer confidently to answer. Her insti- 
tutions, however suitable to her position in a world of 
her own, could not be transferred bodily to Europe. 
But the peace and prosperity which the Union enjoys 
imder its democratic government do raise a strong pre- 
sumption in favour of democracy even in Europe. For 
the passions and vices which attack free government 
are the same in America as in Europe, and as the legis- 
lator has overcome many of them there, combating envy 
by the idea of rights, and the presumptuous ignorance 
of the crowd by the practice of local government, he 
may overcome them here in Europe likewise. 

One may imagine institutions for a democracy other 
than those the Americans have adopted, and some of 
them better ones. Since it seems probable that the peo- 
ples of Europe will have to choose between democracy 
and despotism, they ought at least to try the former, and 
may be encouraged by the example of America. 

A concluding chapter is devoted to speculations on the 
future of the three races which inhabit the territories of 
the United States. I need not transcribe what he says of 
the unhappy Indian tribes. Their fate was then already 
certain : the process which he saw passing in Alabama 
and J\Iichigan afterwards repeated itself in California 
and Oregon. 

The presence of the blacks is the greatest evil that 
threatens the United States. They increase, in the Gulf 
States,, faster than do the whites. They cannot be kept 

1 Like most of his contemporaries, Tocqueville failed to appreciate the enormous 
influence of phj'sical environment, which has, however, doubtless increased, so far 
as America is concerned, through the scientific discoveries made since the date of 
his journey. 



HAMILTON AND TOCQUEVILLE 221 

for ever in slavery, since the tendencies of the modern 
world run strongly the other way. They cannot be ab- 
sorbed into the white population, for the whites will not 
intermarry with them, not even in the North where they 
have been free for two generations. Once freed, they 
would be more dangerous than now, because they would 
not long submit to be debarred from political rights. A 
terrible struggle would ensue. Hence the Southern 
Americans, even those who regret slavery, are forced to 
maintain it, and have enacted a harsh code which keeps 
the slave as near as possible to a beast of burden, for- 
bidding him to be taught and making it difficult for him 
to be manumitted. No one in America seems to see any 
solution. The North discusses the problem with noisy 
inquietude. The South maintains an ominous silence. 
Slavery is evidently economically mischievous, for the 
free States are far more prosperous : but the South holds 
to slavery as a necessity. 

As to the Federal Union, it shows many signs of weak- 
ness. The States have most of the important powers 
of government in their hands ; they have the attachment 
of the people ; they act with vigour and promptitude, 
while the Federal authority hesitates and argues. In 
every struggle that has heretofore arisen the Federal 
Government has given way, and it possesses neither the 
material force to coerce a rebelHous State nor a clear 
legal right to retain a member wishing to dissolve the 
Federal tie. But although the Union has no national 
patriotism to support it (for the professions of such 
patriotism one hears in America are but lip-deep), it is 
maintained by certain interests — those material interests 
which each part of the country has in remaining politi- 
cally united with the rest. Against these one finds no 
strong interests making for material severance, but one 
does find diversities, not indeed of opinion — for opinions 
and ideas are wonderfully similar over the whole coun- 
try — but of character, particularly between Northern 
and Southern men, which increase the chances of discord. 



222 EAJIILTOX AXD TOCQUETILLE 

And in the rapid growth of the Union there lies a real 
source of danger. Its population doubles every twenty- 
two years. Before a century has passed its territory will 
be covered by more than a hundred millions of people 
and divided into forty States i. Now all partnerships 
are more difficult to keep together the more the numiber 
of partners increases -. Even admitting, therefore, that 
this hundred millions of people have similar interests 
and are benefited by remaining united, still the mere 
fact that they wdll then form forty nations, distinct and 
unequally powerful, wall make the maintenance of the 
Federal Government only a happy accident. ' I cannot 
believe in the duration of a government whose task is to 
hold together forty different peoples spread over a sur- 
face equal to the half of Europe, to avoid rivalries, ambi- 
tions, and struggles among them, and to unite the action 
of their independent wills for the accomplishment of the 
same plans ^.' 

The greatest danger, however, which the Union incurs 
as it grows is the transference of forces which goes on 
within its own body. The Xorthern States increase 
more rapidly than the Southern, those of the Mississippi 
Valley more rapidly still. Washington, which when 
founded was in the centre of the Union, is now at one 
end of it. The disproportionate groAvth of some States 
menaces the independence of others. Hence the South 
has become suspicious, jealous, irritable. It fancies itself 
oppressed because outstripped in the race of prosperity 
and no longer dominant. It threatens to retire from a 
partnership whose charges it bears, but whose profits it 
does not share ^. 

Besides the danger that some States may withdraw 

1 There are now forty-five, with a population of nearly eighty millions. 

2 No proof is given of this proposition, which is by no means self-evident, and 
which has indeed all the air of a premiss laid down by a schoolman of the thir- 
teenth century. 

3 He has, however, nowhere attempted to prove that the States deserve to be 
called ' nations ' or ' peoples.' 

* The protective tariff was felt as a grievance by the South, being imposed in the 
interest of the Northern and Middle States. No doubt, the North got more pecu- 
niary gain out of the Union than the South did. 



HAMILTON AND TOCQUEVILLE 223 

from the Union (in which case there would probably be 
formed several federations, for it is highly unlikely that 
the original condition of State isolation would reappear), 
there is the danger that the central Federal authority 
may continue to decline till it has become no less feeble 
than was the old Confederation. Although Americans 
fear, or pretend to fear, the growth of centralization and 
the accumulation of powers in the hands of the Federal 
Government, there can be little doubt that the central au- 
thority has been growing steadily weaker, and is less and 
less able to face the resistance of a refractory State. The 
concessions of public territory made to the States, the 
hostility to the United States Bank, the (virtual) success 
of South Carolina in the Nullification struggle, are all 
proofs of this truth. General Jackson, now (1832) Presi- 
dent, is at this moment strong, but only because he flat- 
ters the majority and lends himself to its passions. His 
personal power may increase, but that of the President 
declines. ' Unless I am strangely mistaken, the Federal 
Government of the United States tends to become daily 
weaker; it draws back from one kind of business after 
another, it more and more restricts the sphere of its 
action. Naturally feeble, it abandons even the appear- 
ance of force. On the other side, I think I perceive that 
in the United States the sentiment of independence be- 
comes more and more lively in the States, and the love of 
provincial government more and more pronounced. 
People wish to keep the Union, but to keep it reduced 
to a shadow : they would like to have it strong for some 
purposes and weak for the rest — strong in war and al- 
most non-existent in peace — forgettmg that such alter- 
nations of strength and weakness are impossible.' 

Nevertheless the time when the Federal power will 
be extinguished is still distant, for the continuance of 
the Union is desired, and when the weakness of the Gov- 
ernment is seen to threaten the life of the Union, there 
may be a reaction in its favour. 

Whatever may be the future of the Federation, that 



224 HAMILTON AXD TOCQUETILLE 

of republicanism is well assured. It is deeply rooted 
not only in the laws, but in the habits, the ideas, the 
sentiments, even the religion of the people. It is indeed 
just possible that the extreme instability of legislation 
and administration may some day disgust the Americans 
with their present government, and in that case they will 
pass rapidly from republicanism to despotism, not stop- 
ping by the way in the stage of limited monarchy. An 
aristocracy, however, such as that of the old countries 
of Europe, can never grow up. Democratic equality 
will survive, whatever be the form which government 
may take. 

This brief summary, which conveys no impression of 
the elegance and refinement of Tocqueville's reasonings, 
need not be pursued to include his remarks on the com- 
mercial and maritime greatness of the United States, 
nor his speculations on the future of the Anglo-Ameri- 
can race. Still less shall I enter on the second part of 
the book, for (as has been observed already) it deals 
with the ideas of democracy and equality in a very ab- 
stract and sometimes unfruitful way, and it would need 
a separate critical study. 

But before passing on to consider how far the United 
States now dift'ers from the republic which the French 
philosopher described, we must pause to ask ourselves 
whether his description was complete. 

It is a salutary warning to those who think it easy to 
get to the bottom of the political an d soc ial phenomena 
of a nation, to find that so keen and so industrious an 
observer as Tocqueville, who seized with unrivalled 
acuteness and described with consummate art many of 
the minor features of American politics, omitted to no- 
tice several which had already begun to show their heads 
in his day, and have since become of the first importance. 
Among these are — 

The system of party organization. It was full grown 
in some States (Xew York for instance), and spreading 
quickly through the rest. 



HAMILTON AND TOCQVEVILLE 225 

The influence of commercial growth and closer com- 
mercial relations in binding together different States 
of the Union and breaking down the power of State 
sentiment. He does in one passage refer to this influ- 
ence, but is far from appreciating the enormous force it 
was destined to exercise, and must have exercised even 
without railways. 

The results of the principle proclaimed definitely just 
before his visit, and already operative in some places, 
that public office was to be bestowed as a reward for 
political service, and held only so long as the party which 
bestowed it remained in power. 

The assertion by President Monroe of the intention 
of the United States to regard as unfriendly (i.e. to do 
their best to resist) any extension of the ' European 
system ' to the American Continent, and any further 
colonization thereof or intrusion by European powers 
thereon. 

The rise of the Abolitionists (they had begun to or- 
ganize themselves before 1830, and formed a National 
Anti-Slavery Society in 1833) and the intense hostility 
they aroused in the South. 

The growth of the literary spirit, and the beginnings 
of literary production. The society which produced 
Washington Irving, Fenimore Cooper, Channing, Haw- 
thorne, Emerson, Longfellow, Thoreau, Prescott, Tick- 
nor, Margaret Fuller, Holmes, Lowell, Parkman — not 
to add some almost equally famous later names — de- 
served mention as a soil whence remarkable fruits might 
be expected which would affect the whole nation. Yet 
it is not once referred to, although one can perceive that 
Tocqueville had spent some time in Boston, for many 
of his views are evidently due to the conversations he 
held with the leading Whigs of that day there. 

The influence of money on politics. It might surely 
have been foretold that in a country with such resources, 
and among a people whose restless commercial activity 
would be able to act on a vast scale, great piles of wealth 



226 HAMILTON AND TOCQUEYILLE 

would soon be accumulated, that this wealth would per- 
ceive objects which it might accomplish by legislative 
aid, would seek to influence governments, and would 
find ample opportunities for doing so. But of the 
dangers that must thence arise we do not hear a word. 

VII. Examination of Tocqueville's Views. 

Such was the aspect of the United States in 1832, 
such the predictions which an unusually penetrating and 
philosophic mind formed of its future. I will not attempt 
to inquire how far the details of the picture are accu- 
rate, because it would be unprofitable to contest state- 
ments without assigning one's own reasons, while to 
assign them would lead me into a historical disquisition. 
A shorter and simpler course will be to inquire in what 
respects things have changed since his time, for thus we 
shall be in a position to discern which of the tendencies 
he noted have proved permanent, what new tendencies 
have come into being, what are the main tendencies 
which are now controlling the destinies of the Republic. 

I have noted at the end of last section the phenomena 
which, already existing in Tocqueville's day, he omitted 
to notice or to appraise to their due value. Let us see 
what time has brought forward since his day to alter 
the conditions of the problem as he saw it. 

The great events that have befallen since 1834 are 
these : — 

The annexation of Texas in 1845. 

The war with Mexico in 1846, leading to the enlarge- 
ment of the United States by the vast territories which 
are now California, Nevada, Utah, Idaho, Arizona, and 
New A-Iexico. 

The making of railways over the whole country, cul- 
minating with the completion of four or five great Trans- 
Continental roads (the first in 1869). 

The establishment of Hnes of swift ocean steamers be- 
tween America and Europe. 



HAMILTON AND TOCQVEVILLE 227 

The immigration from Ireland (immensely increased 
after the famine of 1846), and from Germany (beginning 
somewhat later), and from Scandinavia, Austria-Hun- 
gary, and Russia (later still). 

The War of Secession, 1861-65 5 together with the ex- 
tinction of Slavery. 

The laying of submarine cables to Europe, and the 
extension of telegraphic communication over the whole 
Union. 

The settlement of the Alabama claims, an event 
scarcely less important in American history than in 
English, because it greatly diminished the likelihood of 
a war between the two countries. In Tocqueville's time 
the hatred of Americans to England was rancorous. 

The growth of great cities. In 1830, only two had a 
population exceeding 100,000. There are now (census 
of 1900) thirty-eight which exceed that population ^. 

The growth of great fortunes, and of wealthy and 
powerful trading corporations ; the extension of mining, 
especially silver and gold mining; the stupendous de- 
velopment of speculation, not to say gambling, in stocks 
and produce. 

The growth of the universities and of many kindred 
literary and scientific institutions. 

The war with Spain in 1898, and consequent annexa- 
tion of Hawaii (which might probably not have been 
taken but for naval needs supposed to have been dis- 
closed by the war), of Puerto Rico, and of the Philippine 
Isles. 

These are events which have told directly or indirectly 
upon politics. I go on to enumerate the political 
changes themselves of the same sixty-seven years. 

Democratization of State Constitutions, total aboli- 
tion of property qualifications, choice of judges (in most 
States) by popular vote and for terms of years, restric- 

1 In 1790 there were only six cities with populations of at least 8,000. There are 
now 545. The percentage of urban to rural population (taking urban as that of a 
city of 8,000) was then 3.4 and is now 33.1. 



228 HAMILTOX AXD TOCQUEVILLE 

tions on the power of State Legislatures, more frequent 
use of the popular vote or so-called Referendum i. 

Development of the Spoils System, consequent de- 
gradation of the increasingly large and important civil 
service, both Federal, State, and ^Municipal. 

Perfection and hierarchical consolidation, on nomi- 
nally representative but really oligarchic lines, of party 
organizations ; consequent growth of Rings and Bosses, 
and demoralization of city government. 

Enfranchisement of the negroes through amendments 
to the Constitution. 

Intensification of National (as opposed to State) sen- 
timent consequent on the War of Secession; passion 
for the national flag; rejection of the dogmas of State 
sovereignty and right of nullification. 

Increased importance of currency and other financial 
problems : emergence of industrial questions as bases 
for party organization : efforts to found a Labour Party 
and a ' People's Party." 

To these I add, as powerfully aft'ecting politics, the 
development not only of literary, scientific and historical 
■ studies, but in particular of a new school of publicists, • 
who discuss constitutional and economic questions in a 
philosophic spirit ; closer intellectual relations with Eu- 
rope, and particularly with England and Germany ; re- 
sort of American students to German L^niversities ; in- 
creased interest of the best class of citizens in politics ; 
improved literary quality of the newspapers and of peri- 
odicals (political and semi-political) generally; growth' 
' of a critical and sceptical spirit in matters of religion; 
and philosophy; diminished political influence of the / 
clergy. 

We may now ask which of Tocqueville's observations 
have ceased to be true, which of his predictions falsified. 
I follow the order in which they were presented in the 
last section. 

1 Especially in the form of the amendment of particular provisions of State Con- 
stitutions. 



HAMILTON AND TOCQUEVILLE 229 

Although the powers of the several States remain in 
point of law precisely what they were (except as regards 
the Constitutional amendments presently to be noticed) 
and the citizen depends as much now as then upon the 
State in all that relates to person and property, to the 
conduct of family and commercial relations, the National 
or Federal Government has become more important to 
him than it was then. He watches its proceedings more 
closely, and, of course, thanks to the telegraph, knows 
them sooner and more fully. His patriotism is far more 
national, and in case of a conflict between one or more 
States and the Federal power, the sympathies of the 
other States would probably be with the latter. 

Local government has been maintained in its com-[ 
pleteness, but it seems to excite less interest among the(^ 
people. In the larger cities it has fallen into the hands] 
of professional politicians, who have perverted it into a. 
grasping and sordid oligarch3\ 

There is still, as compared with Continental Europe, 
little ' administration,' though more than in Tocque- 
ville's time. But the influence of Federal legislation on 
the business of the country is far greater than it was, for 
the tariff and the currency, matters of increased conse- 
quence ever since the war, are in its hands. 

The dignity of the judicial bench has in most States 
sufifered seriously from the system of popular election 
for comparatively short terms. In those States where 
nomination by the Executive has been retained, and in 
the case of the Federal Judges (nominated by the Presi- 
dent), the position is perhaps the highest permanent 
one open to a citizen. 

The President's authority received a portentous en- 
largement during the War of Secession, and although 
it has now returned to its normal condition, the sense 
of its importance has survived. His election is contested 
with increasing excitement, for his immense patronage 
and the magnitude of the issues he may influence by his 
veto power give individuals and parties the strongest 



230 HAMILTON AXD TOCQUEYILLE 

grounds for hope and fear. Experience has, on the 
whole, confirmed the view that the re-ehgibiUty of an 
acting President (i.e. the power of electing him for an 
immediately succeeding term) might well be dispensed 
with. 

The credit of the Supreme Court suffered somewhat 
from its pro-slavery decisions just before the war, and 
may possibly have sufifered slightly since in respect of 
its treatment of the Legal Tender question. Neverthe- 
less it remains respected and influential. 

The State Constitutions, nearly all of which have been 
re-enacted or largely amended since 1834, remain in- 
ferior to the Federal Constitution, and the State legisla- 
tures are, of course (possibly with a very few excep- 
tions in the New England States), still more inferior to 
Congress. 

Two great parties reappeared immediately after 
Tocqueville wrote, and except for a brief interval be- 
fore the Civil War when the Whig party had practically 
expired before its successor and representative the Re- 
publican party had come to maturity, they have con- 
tinued to divide the country, making minor parties of 
slight consequence. Now and then an attempt is made 
to start a new party as a national organization, but it 
rarely becomes strong enough to maintain itself. The 
rich and educated renewed their interest in politics under 
the impulse of the Slavery and Secession struggle. 
After a subsequent interval of apathy they seem to be 
again returning to public life. The secret murmurs 
against democracy, whereof Tocqueville speaks, are 
confined to a handful of fashionable exquisites less self- 
complacent now than they were in the days when they 
learnt luxury and contempt for the people in the Paris 
of Louis Napoleon. 

Although newspapers are better written than formerly 
and those of the great cities travel further over the coun- 
try, the multitude of discordant voices still prevents the 
people from being enslaved by the press, which however 



HAMILTON AND TOCQVEYILLE 231 

shows an. alarming capacity for exciting them. The 
habit of association by voluntary societies maintains 
itself. 

The defects of the professional politicians, a term 
which now more precisely describes those whom 
Tocqueville calls by the inappropriate European name 
of ' the governors; continue at least as marked as in his 
time. 

So, too, the House of Representatives continues less 
influential than the Senate, but for other reasons than 
those which Tocqueville assigns, and to a less degree 
than he describes. The Senate has not, since 1880, main- 
tained the character he gives it ; and the fact that it is 
still chosen in the way which he commended shows that 
the merits he ascribed to it were not due to its mode of 
choice. Indeed in the judgement of most thoughtful 
men, popular election in the States would give a better 
Senate than election by the State Legislatures now does. 

American magistrates never did in general enjoy the 
arbitrary power Tocqueville ascribes to them. They as- 
suredly do not enjoy it now, but in municipalities there 
is a growing tendency to concentrate power, especially 
the appointing power, in the hands of one or a few offi- 
cers in order that the people may have some one person 
on whom responsibility can be fixed. Such power is 
sometimes very wide, but it cannot be called arbitrary, 
A few minor offices are unsalaried ; the salaries of the 
greater ones have been raised, particularly in the older 
States. 

The methods of administration, especially of Federal 
administration, have been much improved, but are still 
behind those of the most advanced European countries, 
one or two departments excepted. 

Government is far from economical. The war of the 
Rebellion was conducted in the most lavish way: the 
high protective tariff raises a vast revenue, and direct 
local taxation takes more from the citizen than in most 
European countries. An enormous sum is spent upon 



232 HAMILTON AND T0CQUE7ILLE 

pensions to persons who purport to have served in the 
Northern armies during the Civil War^. 

Congress does not pass many pubHc statutes, nor do 
they greatly alter ordinary law within the sphere open 
to federal legislation. Alany legislative experiments are 
tried in the newer States, but the ordinary private law 
is in no such condition of mutability as Tocqueville de- 
scribes. The law of England suffered more changes be- 
tween 1868 and 1885 than either the common or statute 
law of the older States of the Union. 

The respect for the rights of others, for the regular 
course of legal process, for the civil magistrate, remains 
strong; nor have the rich (although of late years more 
threatened) seriously begun to apprehend any attacks 
on them, otherwise than as stockholders in great railway 
and other corporations. 

The tyranny of the majority is not a serious evil in 
the America of to-day, though people still sometimes 
profess alarm at it. It cannot act through a State legis- 
lature so much as it may have done in Tocqueville's 
days, for the wings of these bodies have been effectively 
clipped by the newer State constitutions. Faint are the 
traces which remain of that intolerance of heterodoxy 
in politics, religion or social views whereon he dilates 2. 
Politicians on the stump still flatter the crowd, but many 
home truths are told to it nevertheless in other ways and 
places, and the man who ventures to tell them need no 
longer fear social proscription (at least in time of peace) 
in the Northern or Western States, perhaps not even in 
the Southern. 

The Republic came scatheless out of a terrible civil 
war, and although the laurels of the general who con- 
cluded that war twice secured for him the Presidency, 
they did not make his influence dangerous to freedom. 

1 In 1892 the expenditure on this head was $155,000,000 ; in 1901 it was estimated 
at $142,000,000. 

^ Competent American observers in Tocqueville's own time thought he greatly 
exaggerated this danger. See a letter from Jared Sparks printed in Professor 
Herbert B. Adams' interesting monograph _/<rr^(/ Sparks and Alexis de Tocque- 
ville, in Johns Hopkins University Studies, 1898. 
1% 



HAMILTON AND TOCQVEVILLE 233 

There is indeed no great capital, but there are cities 
greater than most European capitals, and the Republic 
has not been imperilled by their growth. The influence 
of the clergy on public affairs has declined : whether or 
no that of religion has also been weakened it is more dif- 
ficult to say. But all Americans are still agreed that re- 
ligion gains by its entire detachment from the State. 

The negro problem remains, but it has passed into 
a new and for the moment less threatening phase. 
Neither Tocqueville nor any one else then living could 
have foreseen that manumission would come as a war 
measure, and be followed by the grant of political rights. 
It is no impeachment of his judgement that he omitted 
to contemplate a state of things in which the blacks have 
been made politically the equals of the whites, while in- 
ferior in most other respects, and destined, apparently, 
to remain wholly separate from them. He was right in 
perceiving that fusion was not possible, and that libera- 
tion would not solve the problem, because it would not 
make the liberated fit for citizenship. Fit — that is to 
say, as fit as a considerable part of the white population 
— they will probably in the long run become, but even 
then the social problem wall remain. His remark that 
the repulsion between the races in the South would pro- 
bably be greater under freedom than under slavery has 
so far been strikingly verified by the result. 

All the forces that made for the maintenance of the 
Federal Union are now stronger than they were then, 
while the chief force that opposed it, viz., the difference 
of character and habits between North and South, 
largely produced by the existence of slavery, tends to 
vanish. Nor does the growth of the Union make the 
retention of its parts in one body more difificult. On the 
contrary, the United States is a smaller country now 
when it stretches from the Bay of Fundy to the Gulf of 
California, with its seventy-six millions of people, than 
it was then with its thirteen millions, just as the civilized 
world was larger in the time of Herodotus than it is now, 



234 HAMILTON AND TOCQVEYILLE 

for it took twice as many months to travel from Perse- 
polis or the Caspian Sea to the Pillars of Hercules as 
it does now to circumnavigate the globe, one was obliged 
to use a greater number of languages, and the journey 
was incomparably more dangerous. Before steamboats 
plied on rivers, and trains ran on railways, three or four 
weeks at least were consumed in reaching Missouri from 
Maine. Now one goes in six days of easy travelling 
right across the continent. 

Nor has the increased number of States bred more 
dissensions. The forty-five States of to-day are not as 
Tocqueville assumes, and this is the error which vitiates 
his reasonings, forty-five nations. The differences in 
their size and wealth have become greater, but they work 
more harmoniously together than ever heretofore, be- 
cause neither the lines which divide parties nor the sub- 
stantial issues which affect men's minds coincide with 
State boundaries. The Western States are now, so far 
as population goes, the dominant section of the Union, 
and become daily more so. But their interests link 
them more closely than ever to the North Atlantic 
States, through which their products pass to Europe, 
and the notion once entertained of moving the capital 
from Washington to the Mississippi valley has been 
quietly dropped. 

VIII. Concluding Summary, 

Before bidding farewell to our philosopher, let us 
summarize his conclusions. 

He sees in the United States by far the most success- 
ful and durable form of democratic government that has 
yet appeared in the world. 

Its merits are the unequalled measure of freedom, 
freedom of action, but not of thought, which it secures 
to the ordinary citizen, the material and social benefits 
it confers on him, the stimulus it gives to all his prac- 
tical faculties. 



HAMILTON AXD TOCQUETILLE 235 

These benefits are likely to be permanent, for they 
rest upon the assured permanence of 

Social equality ; 

Local self-government ; 

Republican institutions ; 

Widely diffused education. 

It is true that these benefits would not have been at- 
tained so quickly nor in such ample measure but for the 
extraordinary natural advantages of the New World. 
Nevertheless, these natural advantages are but subsidi- 
ary causes. The character of the people, trained to free- 
dom by experience and by religion, is the chief cause, 
their institutions the second, their material conditions 
only the third ; for what have the Spaniards made of like 
conditions in Central and South America ^ ? 

Nevertheless, the horizon is not free from clouds. 

What are these clouds ? 

Besides slavery and the existence of a vast negro 
population they are — 

The conceit and ignorance of the masses, perpetually 
flattered by their leaders, and therefore slow to correct 
their faults. 

The withdrawal from politics of the rich, and inferior 
tone of ' the governors,' i.e. the politicians. 

The tyranny of the majority, which enslaves not only 
the legislatures, but individual thought and speech, 
checking literary progress, and preventing the emer- 
gence of great men. 

The concentration of power in the legislatures (Fede- 
ral and State), which weakens the Executive, and makes 
all laws unstable. 

The probable dissolution of the Federal Union, either 
by the secession of recalcitrant States or by the slow de- 
cline of Federal authority. 

There is therefore warning for France in the example 

1 The 'conditions of most parts of the tropical regions of South and Central 
America are in reality quite different from those of the American Union taken as 
a whole. 



236 HAMILTON AND TOCQUEVILLE 

of America. But there is also encouragement — and the 
encouragement is greater than the warning. 

Of the clouds which Tocqueville saw, one rose till it 
covered the whole sky, broke in a thunderstorm, and 
disappeared. Others have silentl}' melted into the blue. 
Some still hang on the horizon, darkening parts of the 
landscape. 

Let us cast one glance back at the course which 
events have actually taken as compared with that which 
Hamilton first, and Tocqueville afterwards, expected. 

The Republic fared far otherwise than as Hamilton 
and his friends either hoped or feared. In this there is 
nothing to impeach their wisdom. They saw the dangers 
of their own time, and like wise and patriotic men pro- 
vided the best remedies which existing conditions per- 
mitted. Some dangers the}- overcame so completely, 
particularly the financial misdoings of State legislatures, 
that these have now passed out of memory. They could 
not foresee what the power of money would become, be- 
cause there was then little money in the country. Theyf 
could not foresee the astonishing development of party! 
machinery, because it is a perfectly new thing in the his-j 
tory of the world : and human imagination never does 
more, at any rate in the field of politics and sociology, 
than body forth things a little bigger than, or in some 
other wise a little varying from, what they have been 
before. It cannot create something out of nothing. 
Least of all could they divine what the results would be 
of the coexistence of the money power and the party ma- 
chine. Nor did even Tocqueville, writing half a century 
later, when wealth had already appeared and the party 
machine was in places beginning to work, perceive what 
both had in store. 

How would Tocqueville amend his criticisms were he 
surveying the phenomena of to-day? 

He would add to his praise of the United States that 
its people re-established their government on firm foun- 
dations after a frightful civil war, that their army went 



HAMILTON; AXD TOCQUEYILLE 237 

back to its peaceful occupations, that they paid off their, 
debt, that they have continued to secure a free field for! 
an unparalleled industrial development and to maintain! 
a hitherto unattained standard of comfort, that the level! 
of knowledge and intellectual culture has risen enor- 
mously. He would admit that he had overrated the 
dangers to be feared from a tyrannical majority and had 
underrated the strength of the Union. But he would' 
stand aghast, as indeed all the best citizens in the United |\l 
States do now, at the mismanagement and corruption of 
city governments. He would perceive that the party 
organizations have now become the controlling force in 
the country, more important than the Legislature or 
the Executive. He would recognize the evils incident 
to the habit of regarding public office as a means of pri- 
vate advantage to its holder and the bestowal of it as a 
reward for party services. And he would, while gladly 
owning that the older forms of faction had ceased to be 
alarming, note a new development which the spirit of 
faction has taken in the tendency to look at and deal 
with both legislation and foreign affairs from the point 
of view of party advantage. Want of foresight or in- 
sight in those who direct the affairs of a mighty nation 
is at all times a misfortune: but when foresight and in- 
sight are set aside for the sake of some transitory party 
gain, the results may be even more serious. 

This, however, is a tendency inherent in all schemes 
of government by party. It is familiar and formidable 
in European countries also. 



VII 

TWO SOUTH AFRICAN CONSTI- 
TUTIONS ' 



I. The Conditions under which these Consti- 
tutions AROSE, 

The old Greek saying, ' Africa is always bringing 
something new ^,' finds an unexpected application in the 
fact that there exist in South Africa two Dutch republics 
possessing constitutions diverse in type from any of 
those which we find subsisting in other modern States. 
The system established by these two South African in- 
struments resembles neither the English, or so-called 
' Cabinet/ system of government, — which has been more 
or less imitated by the other free countries of Europe, 
and has been reproduced in the self-governing British 
colonies, — nor the American, or so-called ' Presiden- 
tial,' system, as it exists in the United States and the 
several States of the American Union. And although 
it bears some resemblance to the constitution of the 
Swiss Confederation and to the constitutions of the 
cantons of Switzerland, this resemblance is not a close 

J This Essay was composed early in 1896, and describes the Constitutions of the 
Orange Free State and South African Republic as they stood in December 1895, the 
month when the fatal invasion of the latter Republic by the police of the British S. 
Africa Company took place. I have left it, for obvious reasons, substantially un- 
changed, save that here and there I have corrected what seemed to be errors, have 
added one or two references to recent events, and have explained some constitu- 
tional points with more fullness. In its original form, the Essay appeared in the 
Forum in April 1896. 

2 Ae'yeToi Tts Jrapotfita oTt dei ^epet AijSuij Ti Kdvov. Arist. Hist. Anim. viii. 28. 



TWO SOUTH AFRICAN CONSTITUTIONS 239 

one, and is evidently not due to conscious imitation, but 
to a certain similarity of phenomena suggesting similar 
devices. The constitutions of these two Dutch republics 
are the product, the pure and original product, of Afri- 
can conditions, having drawn comparatively little from 
the experience of older countries, or from the models 
their schemes of government afford. Moreover, these 
South African constitutions grew up upon a perfectly 
virgin soil. There was no pre-existing political organi- 
zation, such as the old feudal polities supplied in some 
countries of Europe, out of which these Republics could 
develop themselves. There were no charters or guilds 
or companies, such as those which gave their earliest 
form to the governments of several of the older Ameri- 
can States. Nor was there any home pattern to be 
copied, as the British colonies have, by the aid of sta- 
tutes of the Imperial Parliament, copied the constitution 
of the United Kingdom. 

This is one of the most interesting features of these 
Constitutions. They are not specifically Dutch. Neither 
are they English. Nothing is more uncommon in his- 
tory than an institution starting dc novo, instead of being 
naturally evolved out of some earlier form. The simple 
farmers who drafted the documents which I propose to 
describe, knew little about the systems either of Europe 
or of America. Few possessed any historical, still fewer 
any legal, knowledge. Many were uneducated men, 
though with plenty of rough sense and mother wit. 
They would have liked to get on without any govern- 
ment, and were resolved to have as little as possible. 
Circumstances, however, compelled them to form some 
sort of organization ; and in setting to work to form one, 
with little except their recollections of the local arrange- 
ments of Cape Colony to guide or to assist them, they 
came as near as any set of men ever have come to the 
situation which philosophers have so often imagined, 
but which has so rarely in fact occurred — that of free and 
independent persons uniting in an absolutely new social 



240 TWO SOUTH AFRICA^^ CONSTITUTIONS 

compact for mutual help and defence, and thereby creat- 
ing a government whose authority has had, and can have 
had, no origin save in the consent of the governed. 

A few preliminary words are r^eeded to explain the 
circumstances under which the constitutions of the 
Orange Free State and of the South African Republic 
(commonly called the Transvaal) were drawn up. 

As early as 1820 a certain number of farmers, mostly 
of Dutch origin, living in the north-eastern part of Cape 
Colon}^, were in the habit of driving their flocks and 
herds into the wilderness north of the Orange River, 
where they found good fresh pasture during and after 
the summer rains. About 1828 a few of these farmers 
established themselves permanently there, still of course 
remaining subjects of the British Crown, which had 
acquired Cape Colony first by conquest and then by pur- 
chase in 1806 and 1814. In 1835-6, however, a much 
greater number of farmers migrated from the colony ; 
some in larger, some in smaller bodies. They had vari- 
ous grievances against the British Government, some 
dating back as far as 1815: and they desired to live by 
themselves in their own way, untroubled by the Gover- 
nors whom it sent to rule the country 1. Between 1835 
and 1838 a considerable number of these emigrants 
moved into the country beyond the Orange River, some 
remaining there, others pushing still further to the 
north-east into the hitherto unknown regions beyond 
the Vaal River, while a third body, perhaps the largest, 
moved down into what was then a thinly peopled Kafir 
land, and is now the British colony of Natal. This is 
not the place in which to relate the striking story of 
their battles with the Zulu king and of their struggle with 
the British Government for the possession of Natal. It 
is enough to say that this third body ultimately quitted 
Natal to join the other emigrants north of the moun- 

1 A concise account of these grievances and a slcetch of the subsequent history 
of the emigrants may be found in Dr. Theal's Story of S<nith Africa (published by 
IVIessrs. Putnam), and in toy Impressions of South Africa, chaps, xi and xii. See 
also Dr. Theal's larger History of the Boers in Soztth Africa. 



TWO SOUTH AFRICAN CONSTITUTIONS 241 

tains ; and that, after many conflicts between those emi- 
grants and the native tribes, and some serious difiiculties 
with successive Governors of Cape Colony, tlie British 
Government finally, by a Convention signed at Sand 
River in 1852, recognized the independence of the set- 
tlers beyond the Vaal River, while, by a later Conven- 
tion signed at Bloemfontein in 1854, it renounced the 
sovereignty it had claimed over the country between the 
Orange River and the Vaal River, leaving the inhabi- 
tants of both these territories free to settle their own 
future form of government for themselves. 

These two Conventions are the legal and formal 
starting-points of the two republics in South Africa, and 
from them the history of those republics, as self-govern- 
ing states, recognized in the community of nations by 
international law, takes its beginning. The emigrant 
farmers had, however, already been driven by the torce 
of circumstances to establish some sort of government 
among themselves. As early as 1836 an assembly of one 
of the largest emigrant groups then dwelling in the 
Orange River Territory, elected seven persons to con- 
stitute a body with legislative and judicial power. In 
1838 the Natal emigrants established a Volksraad (coun- 
cil of the people) which consisted of twenty-four mem- 
bers, elected annually, who met every three months and 
had the general direction of the affairs of the commu- 
nity, acting during the intervals between the meetings 
by a small committee called the Commissie Raad, All 
important measures were, however, submitted to a 
general meeting called the Publiek, in which every 
burgher was entitled to speak and vote. It was a pri- 
mary assembly, like the Old English Folk Mot, or the 
Landesgemeinde of the older Swiss Cantons. A some- 
what similar system prevailed among the farmers settled 
in the country beyond the Vaal River. They too had a 
Volksraad, or sometimes — for they were from time to 
time divided into separate and practically independent 
republican communities — several Volksraads ; and each 



242 TWO SOUTH AFRICAN CONSTITUTIONS 

district or petty republic had a commandant-general. 
Their organization was really more military than civil, 
and the commandant-general with his Krygsraad (coun- 
cil of war), consisting of the commandants and field cor- 
nets within the district, formed the nearest approach to 
a regular executive. I have unfortunately been unable 
to obtain proper materials for the internal political his- 
tor}^, if such a term can be used, of these communities 
before they proceeded to enact the constitutions to be 
presently described, and fear that such materials as do 
exist are very scanty. But, speaking broadly, it may be 
said that, in all the communities of the emigrant farmers, 
supreme power was deemed to be vested in an assembly 
of the whole male citizens, usually acting through a 
council of delegates, and that the permanent officials 
were generally a magistrate, called a landrost, in each 
village, a field cornet in each ward, and a commandant 
in each district. All these officials were chosen by the 
people ^. In these primitive arrangements consisted the 
materials out of which a constitutional government had 
to be built up. 

From this point the history of the Orange River Ter- 
ritory, which by the Convention of 1854 was recognized 
as the Orange Free State, and that of the Transvaal 
Territory begin to diverge. In describing the constitu- 
tions of the repubHcs, I take first that of the Orange 
Free State, because it dates from 1854, while the existing 
constitution of the Transvaal is four years younger, hav- 
ing been adopted in 1858. The former is also by far the 
simpler and shorter document. 

When the British Government in 1854 voluntarily di- 
vested itself of its rights over the Orange River Terri- 
tory, greatly against the will of some of its subjects 
there, the inhabitants of that Territory were estimated 
at 15,000 Europeans, most of them of Dutch, the rest of 

1 I am indebted for most of these facts regarding the early organization of the 
emigrants to Dr. G. M. Theal's History of the Bosrs in South Africa, a book of 
considerable merit and interest, which, however, carries its narrative down only 
to 1854. 



TWO SOUTH AFRICAN CONSTITUTIONS 243 

British origin. (The number of native Kafirs was much 
larger, but cannot now be estimated.) The great ma- 
jority were farmers, pasturing their sheep and cattle on 
large farms, but five small villages already existed, one 
of which, Bloemfontein, has grown to be a town of 
5,800 people, and is now the capital. The Volksraad, or 
assembly of delegates of the people, framed, and on 
April 10, 1854, enacted, a constitution for the new re- 
public. This constitution was revised and amended in 
1866, and again in 1879, but the main features of the 
original instrument remain. I proceed to deal with it 
as it now stands. 

II. Constitution of the Orange Free State. 

This Constitution, which is in the Dutch language, and 
is called Dc Constitntic, is a terse and straightforward 
document of sixty-two articles, most of which are only 
a few lines in length 1. It begins by defining the qualifi- 
cations for citizenship and the exercise of the sufifrage 
(articles i to 4), and incidentally imposes the obligation 
of military service on all citizens between the ages of 
sixteen and sixty. Only whites can be citizens. New- 
comers may obtain citizenship if they have resided one 
year in the state and have real property to the value 
of at least £150 sterling ($750), or if they have resided 
three successive years and "have made a written promise 
of allegiance. 

Articles 5 to 27 deal with the composition and func- 
tions of the Volksraad, or ruling assembly, which is de- 
clared to possess the supreme legislative authority. It 
consists of representatives (at present fifty-eight in num- 
ber), one from each of the wards or Field Cornetcies, 
and one from the chief town or village of each of the (at 
present nineteen) districts. They are elected for four 

' My thanks are due to the distinguished Chief Justice of the Free State (Mr. 
Melius de Villiers) for much information kindly furnished to me regarding this 
Constitution. 



244 TWO SOUTH AFRICAX COXSTITUTIOXS 

years, one-half retiring every two years. Twelve con- 
stitute a quorum. Every citizen is eligible who has not 
been convicted of crime by a jury or been declared a 
bankrupt or insolvent, who has attained the age of 
twenty-five years, and who possesses fixed {i.e. real) 
unmortgaged property of the value of £500 at least. 

The Volksraad is to meet annually in Alay, and may 
be summoned to an extra session by its chairman, as 
also by the President (§ 34), or by the President and the 
Executive Council (§ 45^ 

The Volksraad has power to depose the President if 
insolvent or convicted of crime, and may also itself try 
him on a charge of treason^ bribery, or other grave 
offence; but the whole Volksraad must be present or 
have been duly summoned, and a majority of three to 
one is required for conviction. The sentence shall in 
these cases extend only to deposition from office and 
disqualification for public service in future, a President 
so deposed being liable to further criminal proceedings 
before the regular courts. 

The votes of members of the A'olksraad shall be re- 
corded on a demand by one-fifth of those present. The 
sittings are to be public, save where a special cause for 
a secret sitting exists. 

The \'olksraad shall make no law restricting the right 
of public meeting and petition. 

It shall concern itself with the promotion of religion 
and education. 

It shall promote and support the Dutch Reformed 
Church. 

It may alter the constitution, but only by a majority 
of three-fifths of the votes in two consecutive annual 
sessions. 

It has power to regulate the administration and 
finances, levy taxes, borrow money, and provide for 
the public defence. 

Articles 28 to 41 deal with the choice and functions 
of the President of the state.' 



TWO ISOUTH AFRICAN CONSTITUTIONS 245 

He is to be elected by the whole body of citizens, 
the Volksraad, however, recommending one or more 
persons to the citizens ^ 

He is chosen for five years and is re-eligible. 

He is the head of the executive, charged with the 
supervision and regulation of the administrative depart- 
ments and public service generally, and is responsible 
to the Volksraad, his acts being subject to an appeal to 
that body. He is to report annually to the Volksraad, 
to assist its deliberations by his advice, but without the 
right of voting, and, if necessary, to propose bills. He 
makes appointments to public offices, and may fill va- 
cancies that occur when the Volksraad is not sitting, but 
his appointments require its confirmation. (Such con- 
firmation has been hardly ever, if ever, refused.) He 
may also suspend public functionaries, but dismissal ap- 
pears to require the consent of the Volksraad. 

Articles 42 to 46 deal with the Executive Council. It 
consists of five members, besides the State President, 
who is cx-officio chairman, with a deciding or overriding 
vote (bestisscndc stem). Of these five, one is the landrost 
(magistrate) of Bloemfontein, another the State Secre- 
tary, both these officials being appointed by the Presi- 
dent and confirmed by the Volksraad ; the remaining 
three are elected by the Volksraad. This Council ad- 
vises the President, but does not control his action in 
matters which the Constitution entrusts to him, reports 
its proceedings annually to the Volksraad, and has the 
rights, in conjunction with the President, of pardoning 
offenders and of declaring martial law. 

Regarding the judicial power only two provisions re- 
quire mention. Article 48 declares this power to be ex- 
clusively exercisable by the courts of law established by 
law. Article 49 secures trial by jury in all criminal 
causes in the superior courts. 

Local government and military organization, subjects 

' In practice, the recommendation of the majority of the Volksraad is lookei'. 
upon as likely to ensure the election of the person so recommended. 



246 TWO SOUTH AFRICAN CONSTITUTIONS 

intimately connected in Dutch South Africa, occupy arti- 
cles 50 to 56 inclusive. 

A field cornet is elected by the citizens of each ward, 
a field commandant by those of each district, in both 
cases from among themselves ^. In case of war, all the 
commandants and cornets taken together elect a Com- 
mandant-General, who thereupon receives his instruc- 
tions from the President. Those who elected him may, 
with the consent of the President, dismiss him and 
choose another. Every field cornet and commandant 
must have landed property, the latter to the value of 
£200 at least. 

Article 57 declares Roman Dutch law to be the com- 
mon law of the state ^. 

. Articles 58 and 59 declare that the law shall be ad- 
ministered without respect of persons and that every 
resident shall be held bound to obey it, while articles 60, 
61, and 62 guarantee the rights of property, of personal 
liberty, and of press freedom. 

It will be convenient to defer general criticisms upon 
the frame of government established by this Constitu- 
tion till we have examined that of the sister republic 
of the Transvaal, which agrees with it in many re- 
spects. But we may here briefly note, before passing 
further, a few remarkable features of the present instru- 
ment. 

1. It is a Rigid constitution, i.e. one which cannot be 
changed in the same way and by the same authority as 
that whereby the ordinary law is changed, but which 
must be changed in some specially prescribed form — in 
this case, by a three-fourths majority of the Volksraad 
in two successive sessions ^. 

2. The body of the people do not come in as a vot- 



1 In the earlier days of Rome the army elected its subordinate officers. 

^ Roman Dutch law is the common law all over South Africa, even in the almost 
purely English colony of Natal (though of course not in Portuguese or German 
territory). It has been largely affected, especially in the British colonies, by recent 
legislation. 

3 As to Rigid Constitutions, see Essay III. 



TWO SOUTH. AFRICAN CONSTITUTIONS 247 

ing power, save for the election of the President and 
Commandant-General. All other powers, even that 
of amending the constitution, belong to the Volks- 
raad. 

3. There is only one legislative chamber. 

4. The President has no veto on the acts of the 
legislature. 

5. The President has the right of sitting in and ad- 
dressing the legislature. 

6. The President's Council is not of his own choosing, 
but is given him by the legislature. 

7. The heads of the executive departments sit neither 
in the Council nor in the legislature. 

8. The legislature may apparently reverse any and 
every act of the President, save those (pardon of offences 
and declaration of martial law) specially given to him 
and the Executive Council. 

American readers will have noted for themselves some 
few points in this Constitution which have been drawn 
from that of the United States. Others are said to have 
been suggested by the Constitution framed for the 
French Republic in 1848. Comparatively few contro- 
versies upon the construction of the Constitution have 
been debated with any warmth. One, which gave rise 
to a difference of opinion between the Volksraad and 
the Supreme Court of the state, arose upon the question 
whether the Volksraad has power to punish a citizen 
for contempt by committing him to prison for a long 
term, and to direct the State Attorney to prosecute him. 
The judges disapproved what they deemed an uncon- 
stitutional stretching of authority by the legislature. 
Using the opportunities of influencing public opinion 
which the delivery of charges to juries gave them, they 
ultimately so affected the mind of the people that the 
Volksraad tacitly retired from its position, leaving the 
question of right undetermined. 



248 TWO SOUTH AFRICAN CONSTITUTIONS 



III. Constitution of the South African Republic, 

The South African Republic, or Transvaal State as 
it is popularly called, is ruled by a much longer, much 
less clear, and much less systematically arranged docu- 
ment than that established by its sister commonwealth i. 
A considerable part of the contents of this constitution 
is indeed unfit, as too minute, for a fundamental instru- 
ment of government ; and, whatever the intention of its 
framers may have been, it has not in fact been treated 
as a fundamental instrument. Whether it is really such, 
in strict contemplation of law, is a question often dis- 
cussed in professional circles in Pretoria and Johannes- 
burg. I shall summarize the more important of its 
provisions — they occupy two hundred and thirty-two 
articles — and endeavour therewith to present an outline 
of the frame of government which they establish. 

The Grondwet (Ground-law) or Constitution was 
drafted by a committee of an assembly of delegates and 
approved by the assembly itself in February, 1858. It 
is in Dutch, but has been translated into English more 
than once. 

Article 6 declares the territory of the republic open to 
every stranger who submits himself to the laws — a pro- 
vision noteworthy in view of recent events — and declares 
all persons within the territory equally entitled, to the 
protection of person and property. 

Article 8 states, inter alia, that the people ' permit the 
spread of the Gospel among the heathen, subject to 
prescribed provisions against the practice of fraud and 
deception ' ; a provision upon whose intention light is 
thrown by the suspicions felt by the Boers of the English 
missionaries. 

Article 9 declares that ' the people will not tolerate 

1 I have to thank my friend Mr. J. G. Kotz^, late Chief Justice of the South Afri- 
can Republic, for information kindly supplied to me regarding certain points in 
this Constitution. 
24 



TWO tiOVTU AFRICAN CONlSTITUTIONS 249 

equality between coloured and white inhabitants either 
in church or in state ^.' 

Article lo forbids slavery or dealing in slaves. 

Article 19 grants the liberty of the press. 

Articles 20 to 23 formerly declared that the people 
would maintain the principles of the doctrine of the 
Dutch Reformed Church, as fixed by the Synod of Dort 
in 1618 and 1619, that the Dutch Reformed Church shall 
be the Church of the State, that no persons shall be 
elected to the Volksraad who are not members of that 
Church, that no ecclesiastical authority shall be acknow- 
ledged save that of the consistories of that Church, and 
that no Roman Catholic Churches, nor any Protestant 
Churches save those which teach the doctrine of the 
Heidelberg Catechism, shall be permitted within the re- 
public. But these archaic provisions were in the revised 
Grondwet of 1889 reduced to a declaration that only 
members of a Protestant Church should be elected to 
the Volksraad ^. 

After these general provisions we come to the frame 
of government. Legislation is committed to a Volks- 
raad, ' the highest authority of the state.' It is to consist 
of at least twelve members (the number is at present 
twenty-four) who must be over thirty years of age and 
possess landed property. Each district returns an equal 
number of members. Residence within the district is 
not required of a candidate. The members were for- 
merly elected for two years, and one-half retired annu- 
ally. Their term was afterwards extended to four years. 
Every citizen who has reached the age of twenty-one 
enjoys the suffrage ^ (persons of colour are of course 



* The Boers are a genuinely relij^ious people, and read their Bibles. But they 
have shown little regard to i Corinthians xii. 13 ; Galatians iii. 28 ; and Colossians 
iii. II. The same maybe said of the people of the Southern States of America; 
and is indeed also true of the less religious English both in South Africa and in the 
West Indies. 

^ I am informed that even this restriction was abolished subsequently to 1895. 

^ The suffrage was by subsequent enactments restricted as respects immigrants 
and the sons of immigrants ; and in 1895 a person coming into the country could not 
obtain full electoral rights till after a period of twelve years. In July 1899, three 



250 TWO SOUTH AFRICAN CONSTITUTIONS 

incapable of voting or of being elected). The unwork- 
able provision of the old Grondwet that ' any matter dis- 
cussed shall be decided by three-fourths of the votes ' 
was subsequently repealed. 

Three months are to be given to the people for inti- 
mating to the Volksraad their opinion on any proposed 
law, ' except laws which admit of no delay ' (§ 12), but 
laws may be discussed whether published three months 
before their introduction or introduced during the ses- 
sion of the Volksraad (§ 43). The sittings are to open 
and close with prayer, and are to be public, unless the 
chairman or the President of the Executive Council 
deems secrecy necessary. 

If the high court of justice declares the President, or 
any member of the Executive Council, or the Command- 
ant-General, unfit to fill his office, the Volksraad shall 
remove from office the person so declared unfit and shall 
provide for filling the vacant office. 

The administration, as well as the proposal, of laws 
was by the old Grondwet given to an Executive Council 
(§ 13). The revised instrument vests it in the State Presi- 
dent. The President is elected for five years by the citi- 
zens voting all over the country. He must have attained 
the age of thirty and be a member of a Protestant (for- 
merly of the Dutch Reformed) Church (§ 56). He is 
the highest officer of the state, and appoints all officials. 
All public servants, except those who administer justice, 
are subordinate to him and under his supervision. In 
case of his death, dismissal, or inability to act, his func- 
tions devolve on the oldest member of the Executive 
Council till a new appointment is made. The Volksraad 
shall dismiss him on conviction of any serious offence. 
He is to propose laws to the Volksraad — ' whether ema- 
nating from himself or sent in to him by the people ' — 
and support them in that body either personally or 
through a member of the Executive Council. He has, 

months before the war which broke out in that year, the period was shortened to 
seven years owing- to pressure by the British Government. 



TWO SOUTH AFRICAN CONSTITUTIONS 251 

however, no right to vote in the Volksraad. He recom- 
mends to the Volksraad persons for appointment to 
public posts ; and may suspend public servants, saving 
his responsibility to the Volksraad. He submits an esti- 
mate of revenue and expenditure, reports on his own 
action during the past year and on the condition of the 
republic, visits annually all towns and villages where any 
public office exists to give due opportunity to the inhabi- 
tants of stating their wishes. 

The Executive Council consists of four official mem- 
bers besides the President, namely, the State Secretary, 
the Commandant-General, the Superintendent of Native 
Affairs, and the Keeper of Minutes (Notidcnhouder), and 
of tVk'o other members. All except the Commandant- 
General are elected by the Volksraad ; the Secretary for 
four years, the two other members for three years. The 
Commandant-General is elected by the burghers of the 
whole republic for ten years. All, including the Presi- 
dent, are entitled to sit, but not to vote, in the Volksraad. 
The President and Council carry on correspondence 
with foreign powers, and may commute or remit a penal 
sentence. A sentence of death requires the unanimous 
confirmation of the Council. The President may, with 
the unanimous consent of the Council, proclaim war and 
publish a war ordinance summoning all persons to serve 
(§§23,66,84). 

The provisions relating to the military organization 
(§§93-114) are interesting chiefly as indicating the 
highly militant character of the republic. Express pro- 
vision is made not only for foreign war and for the 
maintenance of order at home, but also for the cases of 
native insurrection and of disaffection or civil war among 
the whites. The officers are all elected by the burghers, 
the Commandant-General by the whole body of burghers 
for ten years, the commandants in each district for five 
years, the field cornets and assistant field cornets in the 
wards for three years. 

The judiciary(§§ ii5-i35)consists of landrosts(magis- 



252 TTFO SOUTH AFRICAN COXSTITrTIOXS 

trates who also discharge administrative duties), heem- 
raden (local councillors or assessors), and jurors. The 
provisions regarding the exercise of judicial power are 
minute and curious in their way, but have no great in- 
terest for constitutional purposes. Two landrosts are 
proposed to the people of the judicial district by the 
Executive Council, and the people vote between these 
two. Minute provisions regarding the oaths to be taken 
by these officials and by jurymen, and regarding the 
penalties they may inflict, fill the remaining articles. A 
guarantee for the independence of the courts is to be 
found in the general statement in article 15 that ' the 
judicial power is vested in landrosts, heemraden, and 
jurors,' and in the declaration (§ 57) that the judicial offi- 
cers are ' left altogether free and independent in the 
exercise of their judicial power.' A High Court and a 
Circuit Court, not provided for in the old Grondwet, 
appear in that of 1889, and are appointed for life. The 
High Court consists of a chief justice and four puisne 
judges. 

The old Grondwet also contained some curious details 
relating to civil administration (which was primarily en- 
trusted to the judicial officers, supported by the com- 
mandants and field cornets), and the revenue of the 
State, which was intended to be drawn chiefly from fees 
and licences, the people having little disposition to be 
directly taxed. The farm tax was not to exceed forty 
dollars, and the poh-tax, payable by persons without or 
with only one farm, was fixed at five dollars annually. 
Five dollars was the payment allowed to each member 
of the A'olksraad for each day's attendance. Alost of 
these provisions have disappeared from the instrument 
of 1889. The salary of the President of the Council, 
which had been fixed at 5.333 dollars, 2 schehings. and 
4 stuivers, to be increased as the revenue increased, 
now amounts to £7,000 sterling ($35,000) per annum, 
besides allowances. 

The most considerable change made smce 1889 was 



TWO SOUTH AFRICAN COXSTITUTIOXS 253 

the establishment, in 1890, of a chamber called the Sec- 
ond Volksraad, which is elected on a more liberal basis 
than the First Volksraad, persons who have resided 
in the country for two years, have taken an oath of 
allegiance and have complied with divers other require- 
ments, being admissible as voters. This assembly, how- 
ever, enjoys little real power, for its competency is con- 
fined to some specified matters, and to such others as 
the First Volksraad may refer to it ; and its acts may be 
overruled by the First Raad, whereas the Second Raad 
has no power of passing upon the resolutions or laws 
enacted by the First Raad. The Second Volksraad is, 
therefore, not a second chamber in the ordinary sense 
of the term, such as the Senate in American States or 
the House of Lords in England, but an appendage to the 
old popular House. It was never intended to exercise 
much power, and was, in fact, nothing more than a con- 
cession, more apparent than real, to the demands of 
the Uitlanders, or recent immigrants excluded from 
citizenship. 

A few general observations may be made on this 
Constitution before we proceed to examine its legal cha- 
racter and effect. 

It was in its older form a crude, untechnical docu- 
ment, showing little trace on the part of those who 
drafted it either of legal skill or of a knowledge of other 
constitutions. The language was often vague, and many 
of the provisions went into details ill-fitted for a funda- 
mental law. 

Although enacted by and for a pure democracy, it was 
based on inequality — inequality of whites and blacks, 
inequality of religious creeds. Not only was the Dutch 
Reformed Church declared to be established and en- 
dowed by the State, but Roman Catholic churches were 
forbidden to exist, and no Roman Catholic nor Jew nor 
Protestant of any other than the Dutch Reformed 
Church was eligible to the presidency, or to membership 
of the legislature or executive council. In its improved 



-254 TWO SOUTH AFFICAN COXSTITUTIOXS 

shape (1889) some of these fauhs have been corrected, 
and in particular the reHgious restrictions were reduced 
to a requirement that the President, the Secretary of 
State, the Landrosts and the members of the Volksraad 
should belong to a Protestant Church. The door, how- 
ever, remained barred against persons of colour. 

It contained and still contains little in the nature of 
a Bill of Rights, partly perhaps from an oversight on 
the part of its draftsmen, but partly also owing to the 
assumption — which the early history of the republic 
amply verified — that the government would be a weak 
one, unable to encroach upon the rights of private 
citizens. 

The first legal question which arises upon an exami- 
nation of this Constitution relates to its stability and 
permanence. Is it a Rigid or a Flexible Constitution? 
That is to say, can it, like the constitution of the Orange 
Free State and that of the United States, be altered 
only in some specially prescribed fashion? Or may it be 
altered by the ordinary legislature in the ordinary way, 
like any other part of the law ? 

In favour of the former alternative, that the consti- 
tution is a Rigid one, appeal has been made not only 
to the name Grondwet (Ground-law), but, which is of 
more consequence, to some of its language. The gene- 
ral declarations of the power of the people, the form in 
which they entrust power to the legislature, to the Ex- 
ecutive Council, and to the judiciary respectively (as 
well as to the military authorit}^), look as if meant to 
constitute a triad of authorities, similar to that created 
by the constitutions of American States, no one of which 
authorities may trespass on the province of the others. 
Some things seem intended to be secured against any 
alteration by the legislature, e. g., article 9 declares that 
* the people will not allow of any equahty between co- 
loured and white inhabitants ' ; article 1 1 declares that 
' the people reserve to themselves the exclusive right 
of protecting and defending the independence and 



TWO SOUTH AFRICAN CONSTITUTIONS 255 

inviolability of Church and State, according to the 
laws.' 

On the other hand, it is argued that the constitution 
must be deemed to be a Flexible one, because it did 
not in its original form, and does not now, contain any 
provision whereby it may be altered, otherwise than by 
the regular legislature of the country acting according 
to its ordinary legislative methods. One cannot suppose 
that no change was intended ever to be made in the 
Grondwet, That supposition would be absurd in view 
of the very minute provisions on some trivial subjects 
which it contains. No distinction is drawn, by the terms 
of the instrument, between these minutiae and the pro- 
visions of a more general and apparently permanent na- 
ture. Ergo, all must be alterable, and alterable by the 
only legislative authority, that is to say, the Volksraad. 
This view, moreover, is the view which the legislature 
has in fact taken, and in which the people have certainly 
acquiesced. Some changes have been made — such as 
the admission to the electoral franchise of persons not 
belonging to the Dutch Reformed Church, the creation 
of a new svtpreme court, and the establishment of a 
Second Volksraad — which are not consistent with the 
Grondwet, but whose validity has not been contested. 

The difficulty which arises from the fact that, whereas 
the framers of the Grondwet appear to have desired to 
make parts of their work fundamental and unchangeable, 
they have nevertheless drawn no distinction between 
those parts and the rest, and have provided no specific 
security against the heedless change of the weightiest 
parts, may be explained by noting that they were not 
skilled jurists or politicians, alive to the delicacy of the 
task they had undertaken. They expected that the 
Volksraad would continue to be of the same mind as 
they were then, and would respect what they considered 
fundamental ; they relied on the general opinion of 
the nation. They had, moreover, provided a method 
whereby the nation should always have an opportunity 



256 TWO SOUTH AFRICAX COXSTITUTIOXS 

of expressing its opinion upon legislation, namely, the 
provision (§ 12) that the people should have a period of 
three months within which to ' intimate to the Volksraad 
their views on any proposed law,' it being assumed that 
the Volksraad would obey any such intimation, although 
no means is provided for securing that it will do so. 

This provision has given rise to a curious question. 
It excepts ' those laws which admit of no delay.' Now 
the Volksraad has in fact neglected the general provi- 
sion, and, instead of allowing the three months' period, 
has frequently hastily passed enactments upon which 
the people have had no opportunity of expressing their 
opinion. Such enactments, which have in some instances 
purported to alter parts of the Grondwet itself, are called 
'resolutions " (bcsluitc) as opposed to laws ; and when ob- 
jection has been taken to this mode of legislation. 
these resolutions seem to have been usually justified on 
the ground of urgency, although in fact many of them, 
if important, could hardly be called urgent. They have 
been treated as equally binding with laws passed in ac- 
cordance with the provisions of the Grondwet (for up 
to 1895 article 12 seems not to have been formally al- 
tered) ; and it is only recently that their validity has been 
seriously questioned in the courts. Those who support 
their validity argue that in passing such resolutions as 
laws, the Volksraad must be taken to have implicitly, 
but decisively, repealed the provision of article 12; or 
that, if this be not so, still the A'olksraad is under article 
12 the sole judge of urgency, and can legally treat things 
as urgent which are, in fact, not so ; a view affirmed by 
the Chief Justice in a case {State v. Hess) which arose in 
1895. They add that even apart from both these argu- 
ments the unbroken usage of the Volksraad during a 
number of years, tacitly approved by the people, must 
be deemed to have established the true construction of 
the Constitution, especially as according to Roman 
Dutch law, usage, whether afhrmative or negative, can 
alter written enactments and could thus annul the direc- 



TWO ^OUTH AFRICAN CONSTITUTIONS 257 

tions of article 12. So it is written in the Digest of Jus- 
tinian (I. 3. 32) : ' Inveterata consuetudo pro lege custo- 
ditur . . . nam quid interest sufifragio populus vo- 
luntatem suam declaret an rebus ipsis et factis? Quare 
rectissime etiam illud receptum est ut leges non solum 
suffragio legis latoris, sed etiam tacito consensu omnium 
per desuetudinem abrogentur.' To this, however, it is 
answered that the principle of obsolescence by contrary 
practice cannot fitly be applied where a statute is recent 
and express. * 

Until 1897, the High Court of the Transvaal had held 
that the resolutions as well as the laws passed by the 
Volksraad were fully valid, whether or no they had been 
submitted to the people for the period of three months, 
nor had the question of their being really urgent been 
raised. It had thus declared the Grondwet to be altera- 
ble by the Legislature, and so not a Rigid Constitution. 
In that year, however, in the case of Brozvn v. Leyds, the 
Court held, by a majority, that a law which had been 
passed without having been submitted to the people 
during the period prescribed by the Grondwet was un- 
constitutional and therefore void, thus appearing to as- 
sert (for the language of the judgement is not very clear) 
the view that the Grondwet was a Rigid Constitution, 
not alterable by the Legislature. This action was 
warmly resented by the Executive and Legislature : and 
the latter passed a resolution directing the President to 
require from every judge on pain of dismissal a declara- 
tion that he would in future recognize as valid every 
law passed by the Volksraad, and not again assert the 
so-called ' testing power ' of inquiring whether a law 
conformed to the provisions of the Grondwet. The 
Chief Justice refused to make this declaration, and was 
accordingly dismissed, much to the regret of those who 
remembered his past services to the State. 

On a review of the whole matter, apart from the po- 
litical passion which has been brought into it, the true 
view would appear to be the following, though I state 



258 TVrO SOUTH AFRICAX COXSTITUTlOyS 

it with the diffidence becoming a stranger who is also im- 
perfectly informed as to the constitutional history of the 
republic. 

The Grondwet of the South African Republic, though 
possibly intended by its framers to be treated, in respect 
of its most important provisions, as a fundamental law 
not to be altered by the A'olksraad in the exercise of its 
ordinary powers, is not really a Rigid constitution but 
a Flexible one. We have to look not so much at what 
the framers may have wished as at what the language 
employed actually conveys and imports ; and the absence 
of any provision, such as that contained in the Constitu- 
tion of the Orange Free State, for a special and peculiar 
method of change, is decisive upon this point. An Ameri- 
can laA\yer,' accustomed to construe strictly documents 
which contain or modify powers, might be inclined to 
argue that the validity of laws (not dealing with matters 
which ' admit of no delay ') which had been passed as 
mere resolutions, ignoring article 12, may have been 
doubtful until the A'olksraad modified that article by 
legislation. But the Transvaal High Court had held that 
the question of urgency was a question for the discretion 
of the Volksraad ; and it must be added that persons ac- 
customed to other legal systems do not necessarily pro- 
ceed upon American principles. The Swiss, for instance, 
make their legislature the interpreter of the Constitu- 
tion for the purpose of determining the extent of legisla- 
tive power 1. Allowing for this, and remembering that 
both the law courts and the whole people had until 1897 
treated the Volksraad as an absolutely sovereign body, 
the action it took in asserting its sovereignty need excite 
no surprise. It was claiming nothing more than the 
powers actually enjoyed by the British Parliament. 
However, although the Volksraad was merely enforcing 
the rights which it reasonably (and I think correctly) 
conceived itself to possess, and could not have permitted 
the majority of the High Court to assert a power pre- 

1 See Essay III, p. 195. 



TWO SOUTH AFRICAN CONSTITUTIONS 259 

viously unknown, a wiser course would have been to 
amend the Constitution in some way which would have 
given to the judiciary a more assured position than that 
which had been secured to them by a confessedly crude 
and imperfect instrument. It was through the confused 
language of the Grondwet that the whole difficulty arose, 
and while formally declaring that the Grondwet was not 
— as it certainly was not — a Rigid Constitution, the 
Volksraad ought to have endeavoured to render it more 
suited to the needs of a society which had grown to be 
dififerent from that for which it had been originally 
enacted. 

IV. Observations on the Character and Working 
OF both Constitutions. 

The principles of these Constitutions are highly demo- 
cratic. They were intended so to be. Among the whites 
settled in these wide territories there prevailed a perfect 
social equality, a passionate love of independence, and 
a strong sense of personal dignity. They were as little 
influenced by political theories as it was possible for 
any civilized men in this century to be. Their wish for a 
government purely popular, and indeed for very little 
of any government at all, was due to their personal ex- 
perience and to the conditions under which they found 
themselves in the wilderness ; and one may doubt 
whether they would have established a regular govern- 
ment but for the dangers which threatened them from 
the warlike native tribes. Such sentiments as I have de- 
scribed would have disposed them, had they lived in a 
city, or in a small area like the cantons of Uri or Ap- 
penzell in Switzerland, to have kept legislation and the 
determination of all grave afifairs in the hands of a 
general meeting of the citizens. But they lived scat- 
tered over a vast wilderness, with no means of com- 
munication save ox-wagons which travel only some 
twelve miles a day. In the Orange River Territory when 



260 TWO SOUTH AFRICAN CONSTITUTIONS 

it became a state there were probably less than three 
thousand citizens, though its area was nearly that of 
England. Hence primary assemblies were impossible, 
and power had to be entrusted to a representative body. 

The predominance of the legislature is the most con- 
spicuous feature of both these constitutions. The Trans- 
vaal Volksraad originally made all the appointments to 
the civil service, for the President had only the right of 
proposing, and even in the revised Grondwet of 1889 
the Raad retains the right of approving or disapproving 
the President's appointments. In both republics the 
Volksraad appoints a majority of the Executive Council 
which surrounds the President, to advise, but also to 
watch and check him. It has complete control of reve- 
nue and expenditure. It may change the constitution, 
though, in the Orange Free State, only by a prescribed 
majority. The President has no veto on its acts ; nor is 
it, as in most modern free countries, divided into two 
chambers likely to differ from and embarrass one an- 
other. Its vote, which may, if it pleases, be a single vote, 
given under no restrictions but those of its own mak- 
ing, is decisive. 

The comparative feebleness of the other branches of 
government corresponds to the overwhelming strength 
of the legislature. The authority of the judiciary re- 
ceived from the first a somewhat vague recognition, and 
its independence was at one time, in the South African 
Republic, seriously threatened by the executive and 
legislature, and saved only by the exertions of the bench 
and bar, which aroused pubhc opinion on its behalf. The 
later controversy between the A'olksraad and the Chief 
Justice has been already discussed. In the Free State 
the Court's claim to be the proper and authoritative in- 
terpreter of the constitution, which would be clear upon 
English or American principles, was never formally ad- 
mitted. And though the judges are in both republics 
appointed for life, their salaries are at the mercy of the 
legislature. 



TWO aOUTH AFRICAN CONSTITUTIONS 261 

The executive head of the government has no doubt 
the advantage, as in an American State, of being directly- 
chosen by the people, and not, as in France, by the 
legislature. But he has no veto on acts of the legisla- 
ture, while his acts can be overruled by it, at least in the 
Orange Free State, for in the Transvaal this may be 
more doubtful. Its approval is required to any appoint- 
ments he may suggest. He is hampered by an Executive 
Council which he has not himself selected, resembling 
in this respect an American State governor rather than 
the President of the Union. It may, in the Free State, 
try him and depose him if convicted. He has no military 
authority, such as that enjoyed by the British Crown 
and its ministers, or by the American President, for 
that belongs to the Commandant-General (though in the 
Orange Free State the Commandant ' receives instruc- 
tions ' from the President). 

Against all these sources of weakness there are 
only two things to set. The President can speak in 
the Volksraad, and he is re-eligible any number of 
times. 

The Executive Council, as already observed, seems 
intended to restrain the President, while purporting to 
aid and advise him. It may be compared to the Privy 
Council of mediaeval England, with the important dif- 
ference that it is appointed, not by the executive, but 
partly by the legislature, partly by the people. As we 
shall see presently, it has proved to be an unimportant 
part of the machinery of government. 

In all these points the two constitutions present a 
close likeness. They are also similar in the recognition 
which they originally gave, and have not whoUy ceased 
to give, to a state church — an institution opposed to 
democratic ideas in America and in the British Colonies 
— as well as in their exclusion of persons of colour from 
every kind of political right. It would appear that upon 
this point there has never been any substantial difference 
of opinion in the two republics. Neither indeed is there 



262 TWO SOUTH AFRICAN COXSTITUTIOXS 

much difference of opinion in the British parts of South 
Africa, for ahhough the influence of Enghsh ideas has 
been so far felt that in Cape Colony persons of colour 
are permitted to vote, still the combination of a property 
qualification with an educational qualification greatly 
restricts their number. A republican form of gov- 
ernment, therefore, does not necessarily appear to 
make for ' human rights ' in the American sense of 
that term, any more than it did in the United States 
in 1/88. 

Speaking generally, these two Constitutions carry the 
principle of the omnipotence of the representative cham- 
ber to a maximum. This will be more clearly seen if we 
compare the system they create, first with the cabinet 
system of Britain and her self-governing colonies, and 
secondly with the presidential system of the United 
States. 

The main differences between the South African 
scheme of government and the British may be briefly 
summarized. 

The head of the executive is, in the South African re- 
publics, chosen directly by the people, whereas in Brit- 
ain and her colonies the executive ministry is virtually 
chosen by the legislature i, though nominally by the 
Crown or its local representative. 

In these republics the executive cannot, as can mini- 
sters under the British system, be dismissed by a vote 
of the legislature, nor on the other hand has the execu- 
tive the power of dissolving the legislature. 

In these republics the nominal is also the real and 
acting executive head, whereas in the British system 
a responsible ministry is interposed between the nominal 
head and the legislature. 

In all the above-mentioned points the South African 
system bears a close resemblance to the American. 

1 Using the expression which Bagehot has made familiar, though of course 
Parliament is far from determining the entire composition of a ministry, which 
may occasionally contain persons it would not have selected. 



TWO SOUTH AFRICAN CONSTITUTIONS 263 

In these republics the President's Council need not 
consist of persons in agreement with his views of policy. 
It may even be hostile to him, as part of Warren Hast- 
ings's council at Calcutta was in permanent opposition 
to that governor. Nor does the Executive Council con- 
sist, like the (normal) British cabinet and United States 
Federal cabinet, of the heads of the great administrative 
departments, though several officials sit in it. 

On the other hand, the South African system agrees 
with the British in permitting the head of the working 
executive to speak in the legislature, a permission which 
has proved to be of the highest importance, and which 
in America is given by usage neither to the Federal 
President ^ nor to a State governor. 

The chief differences between the South African and 
the American system are the following : — 

The President has^ in the South African republics, 
far less independence than belongs in the United States 
to either a Federal President or to the Governor of a 
State. He has no veto on acts of the legislature, and 
less indirect power through the patronage at his dispo- 
sal. Moreover, the one-chambered legislature is much 
stronger as against him than are the two-chambered 
legislatures of America, which may, and frequently do, 
differ in opinion, so that the President or Governor can 
play off one against the other. Further, as already ob- 
served, an American Federal President has a cabinet 
of advisers whom he has himself selected, and an Ameri- 
can State governor has usually officials around him who, 
being elected by a party vote at the same election, are 
probably his political allies ; whereas a South African 
President might possibly have an Executive Council of 
opponents forced on him by the Volksraad. And even 
in negotiations with foreign states, he cannot act apart 
from this Executive Council. 

The distinctive note of both these South African Con- 

J Although there is nothing in the federal constitution to prevent a President 
from addressing either House of Congress. 



264 TWO SOUTH AFRICAX COXSTITUTIOXS 

stitutions is the kind of relation they create between the 
Executive and the Legislature. These powers are not 
disjoined, as in the United States, because a South Afri- 
can President habitually addresses and may even lead 
the Volksraad. Neither are they united, as in Britain 
and her colonies, where the Executive is at the same 
time dependent on the legislature, and also the leader of 
the legislature, for the South African President is elected 
by the people for a fixed term, and cannot be displaced 
by the A'olksraad. He combines the independence of an 
American President with the opportunities of influ- 
encing the legislature enjoyed by a British, or British 
colonial, ^Ministry. For nearly all practical purposes he 
is at the mercy of the legislature, because he has neither 
a veto, like the American President, nor a power of dis- 
solution, like the British ^Ministry. The Volksraad could 
take all real power from him, should it be so minded. 
But he is strong by the possession of the two advantages 
just mentioned. He can persuade his Volksraad, which 
has not, by forming itself into organized parties, become 
inaccessible to persuasion. He can influence the opinion 
of his people, because he is their choice, and a single man 
in a high place fixes the attention and leads the minds of 
a people more than does an assembly. 

It must, however, be remembered that the features — 
perhaps one may say the merits — which I have noted 
as shown in the working of the South African system, 
belong rather to small than to large communities. The 
Free State had in 1895 O'^b' some seventeen thousand 
voting citizens, the Transvaal not many more. Athens 
in the days of Themistocles had about thirty thousand. 
In large countries, with large Legislatures, whose size 
would engender political parties, things would work out 
differently. Furthermore, in a large State, the admini- 
strative departments would be numerous and their work 
heavy. The President could not discuss departmental 
aitairs with the Raad, and could not easily be made per- 
sonally responsible for all that his administrative ofBcers 
2.5 



TWO SOUTH AFRICAN CONSTITUTIONS 265 

did. And the less knowledge he had of affairs and of 
persons, the less influence he exerted over the Raad, the 
more would his Executive Council tend to check him. 
Its members would probably intrigue with the leaders of 
parties in the Volksraad, and make themselves a more 
important factor in the government than they have been 
while overshadowed by his personality. 

Any one who, knowing little or nothing about the 
social conditions and the history of these two republics, 
should try to predict the working of their governments 
from a perusal of their constitutions, would expect to 
find them producing a supremacy, perhaps a tyranny, of 
the representative assembly ; for few checks upon its 
power are to be found within the four corners of either 
instrument. He would be prepared to see party govern- 
ment develop itself in a pronounced form. Power would 
be concentrated in the party majority and its leaders. 
The Executive would become the humble instrument of 
their will. The courts of law, especially in the Trans- 
vaal with its Flexible constitution, would be unable to 
stem the tide of legislative violence. The President 
might perhaps attempt to resist by producing a dead- 
lock over appointments ; and he would have a certain 
moral advantage in being the direct choice of the people. 
But the one-chambered Legislature would in all proba- 
bility prevail against him. 

Is this what has in fact happened? Far from it. 
Party government, in the English and American sense, 
has not made its appearance. The Legislature has not 
become the predominant power, subjecting all others 
to itself. It has, in general, followed the lead of the 
Executive. The Courts of law, though (in the Trans- 
vaal) at one moment menaced, have administered jus- 
tice with fairness and independence. But in order to 
describe what has happened, I must, in a very few sen- 
tences, deal separately with the Orange Free State and 
the South African Republic, for though their constitu- 
tions are similar and the origin of their respective popu- 



266 TWO SOUTH AFRICAX COXSTITUTIOi'S 

lations nearly identical , their history has been very 
different. 

The Orange Free State had, for many years prior to 
1899, a comparatively tranquil and uneventful career. 
One native war inflicted some injury upon it, but the 
result of that war was to give it a strip of valuable terri- 
tory. It had joined the British colonies in a South 
African Customs Union, had placed its railroads under 
the management of the Cape Government, had main- 
tained friendly relations with the two British self-govern- 
ing colonies, had extended the franchise to immigrants 
on easy terms, and was at all times recognized as abso- 
lutely independent by the British Government. Inter- 
nally its development, if not rapid, was both steady and 
healthful. There was no poverty among the people, and 
hardly any wealth. No exciting questions arose to di- 
vide the citizens, and no political parties grew up. The 
Legislature, although too large, has been a sensible, 
business-like body, which wasted no more time than 
debate necessarily implies. From 1863 to 1888 it was 
guided by the counsels of President Brand, whom the 
people elected for five successive terms, and whose 
power of sitting in it and addressing it proved of the 
utmost value, for his judgement and patriotism inspired 
perfect confidence. His successor ^Ir. Reitz, who was 
obliged by ill-health to retire from ofiice in 1895, en- 
joyed equal respect and almost equal influence, when he 
chose to exert it, with the Volksraad, and things went 
smoothly under him, as they promised to do under Presi- 
dent Steyn, who was elected in 1896, for the latter also 
was believed — so I heard when visiting the Free State 
in 1895 — to possess the qualities which had endeared his 
predecessors to the community. The Executive Council 
has not proved to be a very valuable part of the scheme 
of government; and some judicious observers thought 
the constitution ought to be amended by strengthening 

1 The British element is larger among the citizens of the Orange Free State than 
it is in the burgher population of the Transvaal. 



TWO SOUTH AFRICAN CONSTITUTIONS 267 

the position of the courts and introducing provisions for 
a popular vote on constitutional amendments, similar 
to those which exist in American States and in Switzer- 
land. But, on the whole, the system of government 
worked smoothly, purely and efficiently; the Legisla- 
ture was above suspicion, and the people were content 
with their institutions. 

Very different had been the annals of the South Afri- 
can Republic. Soon after the Grondwet was adopted 
in 1858, a civil war broke out; and from that time onward 
factions and troubles of all kinds were seldom wanting. 
In 1877 the country, then threatened by native enemies, 
was annexed to the British dominions against the will 
of the people : in 1881 its autonomy was restored, subject 
to British suzerainty^. Its government, however, con- 
tinued to be pressed by financial and other difficulties, 
till the discovery of rich gold-fields in 1884-6, while sud- 
denly increasing the revenue, drew in a stream of im- 
migrants which has steadily continued to liow, and 
therewith raised that new crop of political troubles of 
which all the world has heard -. The result has been that 
the Constitution has never had any period of compara- 
tive peace in which its working could be fairly tested. 
If it has not worked as smoothly as that of the Free 
State, this may be due not merely to inherent defects 
but to the strain which civil and foreign wars have 
placed upon it. The Legislature, however, has not 
played the leading part. President Burgers, who held 

1 A further convention was made in 1884, whose articles, omitting all reference 
to ' suzerainty ' conceded an independence qualitied only in respect of the veto 
retained by Britain over treaties with foreign powers. 

2 When these immigrants from all parts of the world swarmed into the coun- 
try, admission to the franchise was made more difficult, because the conservative 
section of the citizens naturally feared that the newcomers, many of whom did not 
intend to make the country their home, might, if they forthwith acquired voting 
power, soon secure a majority and overturn the existing system of the republic, 
including the official use of the Dutch language and the relations of Church and 
State. These non-burgher immigrants have been absurdly described as ' helots.' 
A closer parallel to them is to be found not in the semi-serfs of Sparta but in the 
class of resident aliens known at Athens as metics (Aie'ToiKot). But they were indeed 
far better off than that class, since they enjoyed full civic rights in all matters of 
private law, wanting only the right of sharing in the government. 



268 TWO SOUTH AFRICAN CONSTITUTIONS 

office from 1872 till 1877, was, like President M. W. Pre- 
torius before him, practically more powerful than the 
Volksraad; and since 1881 President Kruger, who has 
been thrice re-elected, has been the ruling force in the 
politics of the country. By his influence over the peo- 
ple, by his constant presence and speeches in the Volks- 
raad, he threw its leaders entirely into the shade, and 
probably exerted more actual power than the chief ma- 
gistrate of any other republic, though there was scarcely 
any other chief magistrate whose legal authority was 
confined within such narrow limits. So much may fo- 
reign troubles or economic and social facts, and so much 
do the qualities of individual men, afifect and modify 
and prevail over the formal rules and constitutional ma- 
chinery of government. The Legislature therefore has 
not had in the Transvaal that career of encroachment 
upon and triumph over the other authorities in the State 
which might have been predicted for it. Its turn might 
have come when external relations were tranquil and 
domestic controversies arose. When foreign affairs oc- 
cupy men's minds and call for rapid decision as well as 
for continuity of policy, the Legislature is apt to be, in 
all countries, dwarfed by the Executive. 

Postscript. 

Since the foregoing sketch of these remarkable ex- 
periments in the construction of Frames of Government 
was written (in 1896), both the Dutch republics have 
become involved in a deplorable war with England, 
which has lasted for many months, and still continues 
at the time of this writing. It has brought misery and 
desolation upon South Africa, and not least upon that 
singularly happy, prosperous, peaceful and well-governed 
community, the Orange Free State. While the flames 
are still raging, no one can conjecture in what form 
these two constitutions will emerge from the furnace, 
or whether indeed they will survivei at all. In the midst 



TWO SOUTH AFRICAN CONSTITUTIONS 269 

of SO terrible a catastrophe, a catastrophe unredeemed 
by any prospect of benefit to any of the combatants, 
and one whose results must be fateful in many ways for 
the future of South Africa, and possibly also of Bri- 
tain, the destruction or transformation of constitutions 
seems but a small matter. But had these two republics 
been suffered to continue the normal course of their 
constitutional development, that development would 
have been full of interest. It might even have conveyed 
valuable instruction or suggested useful examples to 
other small commonwealths, for in the scheme of these 
Constitutions, and especially in that of the Free State, 
there are some merits not to be found either in the 
American or in the British system. These simple Free 
State farmers were wiser in their simplicity than some 
of the philosophers who have at divers times planned 
frames of government for nascent communities. But 
though Wisdom is justified of all her children, she can- 
not secure that her children shall survive the shock of 
arms. 



VIII 

THE CONSTITUTION OF THE 
COMMONWEALTH OF AUSTRALIA 

I. Introductory. 

Australia is the first instance in history of a whole 
continent whose inhabitants are all (if we exclude the 
vanishing aborigines) of one race and all owe one alle- 
giance. Thus it has supplied the only instance in which 
a political constitution has been, or could have been, 
framed for a whole continent. It is moreover one of 
the very few cases in history in which a number of com- 
munities politically unconnected (save by their common 
allegiance to a distant Crown) who had felt themselves 
to be practically a nation have suddenly transformed 
themselves into a National State, formally recognizing 
their unity and expressing it in the national institutions 
which they proceeded to create. There could hardly be 
a more striking illustration of the speed with which 
events have been moving during the last and the present 
age than the fact that Australia, or New Holland as it 
was then called, was, except as to part of its coasts, 
marked as a Terra Incognita upon our maps so late as 
the beginning of the eighteenth century, that the first 
British settlement was not planted in it at Sydney (not 
far from Captain Cook's Botany Bay) till 1788, that re- 
sponsible government was not conferred upon the oldest 



THE AUSTRALIAN COMMONWEALTH 271 

colony, New South Wales, until 1855, nor upon West 
Australia till 1890. 

Besides the interest with which every one must see 
the birth of a new nation, occupying a vast and rich 
territory, the student of political science finds further 
matter for inquiry and reflection in the enactment of an 
elaborate constitution for the Commonwealth of Au- 
stralia. Every creation of a new scheme of government 
is a precious addition to the political resources of man- 
kind. It represents a survey and scrutiny of the consti- 
tutional experience of the past. It embodies an experi- 
ment full of instruction for the future. The statesmen 
of the Convention which framed this latest addition to 
the world's stock of Instruments of Government had 
passed in review all previous experiments, had found 
in them examples to follow and other examples to shun, 
had drawn from them the best essence of the teachings 
they were fitted to impart. When the Convention pre- 
pared its highly finished scheme of polity, it delivered 
its judgement upon the work of all who had gone before, 
while contributing to the materials which will be avail- 
able for all who come hereafter to the work of building 
up a State. 

Nearly all the precedents which the Australian Con- 
vention had at its disposal belong to very recent times, 
in fact to the last century and a half. Though federal 
governments are ancient — the oldest apparently is that 
formed by the cities of Lycia in the fourth century B.C. 
— the ancient federations scarcely got beyond the form 
of leagues of small republics for the purpose of common 
military defence. Such leagues never quite grew into 
Federal States, properly so called, i.e. States in which 
the central government exercises direct power over the 
citizens of the component communities. The same re- 
mark applies to the confederacies of the Middle Ages, 
such as that of the Hanse Towns and that of the old 
Swiss Cantons, as well as to the United Provinces of 
the Netherlands. The first true Federal State founded 



272 TEE AUSTRALIAX COMilOyWEALTE 

on a complete and scientific basis was the United States, 
which dates from 1788, when its present Constitution 
was substituted for the Articles of Confederation of 
1776. Next came the Constitution of the Swiss Con- 
federation, enacted in 1848, and replacing a much looser 
form of union which had previously joined the Cantons 
of Switzerland. Its present amended form dates from 
1874. The third was the Constitution of Canada, estab- 
lished by the British North America Act of 1867. Still 
later came the Constitution of the Xorth German Con- 
federation (1866) enlarged into that of the new Ger- 
manic Empire (1871), a remarkable Federal State with 
a monarch for its head, and including as its members 
both large kingdoms, such as Bavaria and Wiirtemberg. 
and the city republics of Ltibeck, Bremen, and Ham- 
burgh. But this last-named Federation, instructive as it 
is, deals with conditions too dissimilar from those of 
Australia to furnish many precedents in point. It was 
the Constitutions of the United States and of Canada 
which the Australians studied most carefully, and 
whence they drew as well inspiration as many useful 
suggestions. And the student who examines the Au- 
stralian scheme will find it interesting to note many 
points that recall, by way either of likeness or of con- 
trast, the systems of the United States, of Switzerland, 
and of Canada. It is only with these three that I propose 
to compare the Australian Constitution in the pages that 
follow. As I am writing not for lawyers but for stu- 
dents of history and of constitutions, who desire to un- 
derstand the nature of this new Government sufficiently 
to follow with intelligence the course of political life 
under it, I shall pass lightly over its more technical and 
more purely legal aspects, and dwell rather upon those 
general features which will give to the future Australian 
polity its character and spirit. 

1 One might add the Constitution of the Austro-Hungarian Monarchy, which 
is a sort of double federation. But it is too peculiar to serve as an example to other 
peoples proposing to federalize. 



THE AUSTRALIAN COMMONWEALTH 273 

II, The Movement for Federation. 

Like the settlements of Britain in North America, the 
Austrahan settlements were organized as Colonies at 
different dates, and several of them independently of the 
others 1. So, again like those of North America, each 
remained legally unconnected with the others, except 
through the allegiance they all owed to the British 
Crown, which sent out Governors to administer them. 
These officers were at first practically despotic ; but 
when self-government was conferred upon a Colony, 
they became the nominal heads of an executive which 
in fact consisted of ministers responsible to the elective 
legislature of that Colony. 

Little as there was in the way of official connexion 
between the scattered settlements, their inhabitants al- 
ways deemed themselves Australians, giving their senti- 
mental attachment rather to the country as a whole than 
to their respective colonies. They were all English ; 
they all lived under similar conditions : their local life 
had not lasted long enough to form local traditions with 
which sentiment could entwine itself. The very names 
of some of the colonies did not favour individualization, 
for who would call himself a Newsouthwalesian? And 
the idea that the colonies ought to be united into one 
political body emerged very early. As far back as 1849 
a Committee in England had recommended that there 
should be a Governor-General for all Australia, with 
power to convene a General Assembly to legislate on 
matters of common colonial interest, and a bill intro- 
duced into Parliament in that year contained clauses for 
establishing such a legislature. These provisions were 
dropped, for the time was not ripe, yet the idea continued 
to occupy the minds of Australian statesmen from that 

' New South Wales in 1788, Tasmania in 1825, Western Australia in 1829, South 
Australia in 1836, Victoria in 1851, Queensland in 1859. Victoria and Queensland 
had however been originally settled (1836 and 1S26), and for some time admini- 
stered, from New South Wales, while Tasmania had been made a penal settlement 
as early as 1804. 



274 THE AUSTBALIAX COIIMOXWEALTH 

year onwards ; and it received a certain impulse from 
the creation of the Canadian Confederation in 1867. 
AVhat it wanted was motive power, that is to say, a sense 
of actual evils or dangers to be averted, of actual bene- 
fits to be secured, by the union of the Colonies into one 
National State. Democratic communities, occupied by 
their own party controversies, are little disposed to deal 
with questions which are not urgent, and which hold out 
no definite promise either of benefit to the masses or of 
political gain to the leaders. However, in 1883 events 
occurred which evoked a new Pan-Australian feeling, 
and indicated objects fit to be secured by a united Au- 
stralian government. The late Lord Derby, then Secre- 
tary of State for the Colonies, was the most cautious and 
unsentimental of mankind. He belonged to the old 
school of English statesmen Avho deprecated — and in 
some cases wisely deprecated — further additions to the 
territories and responsibilities of Britain. Disregard- 
ing the representations of the Governments of several 
among the Colonies, he neglected to occupy the north- 
ern part of the great neighbouring island of New Guinea 
which Australian opinion desired to see British, and 
permitted it, to their great vexation, to be taken by 
Germany. About the same time the escape of convicts 
into Australia from the French penal settlement in New 
Caledonia had caused annoyance, and movements were 
soon afterwards made by France which seemed to in- 
dicate an intention to appropriate the New Hebrides 
group of islands. These occurrences roused the Au- 
stralians to desire an authority which might deliver their 
common wishes to the Home Government and take any 
other steps necessary for guarding their common in- 
terests. Accordingly a conference of delegates from all 
the Colonies, including New Zealand and Fiji, met in 
1884, and prepared a scheme which was transmitted to 
England, and was there forthwith enacted by the Im- 
perial Parliament under the name of The Federal Coun- 
cil of Australasia Act, 1885. This scheme was, how- 



THE AUSTRALIAN COMMONWEALTH 275 

ever, (as I observed when it was tinder discussion in the 
House of Commons) a very scanty, fragmentary and im- 
perfect sketch of a Federal Constitution. It had no 
executive power and no command of money. No colony 
need join unless it pleased, and each might withdraw 
when it pleased. Thus it befell that the plan excited 
little popular interest, and gave such faint promise of 
energetic action that only four colonies, Victoria, 
Queensland, Tasmania, and South Australia, entered 
into it ; and of these South Australia presently with- 
drew. Meanwhile the need for some general military 
organization for all the Colonies began to be felt ; and 
further objects attainable by union floated before men's 
minds. With the increase of trade and industry, the 
vexation of tarifif barriers between the colonies grew 
daily less tolerable. Subjects emerged on which uni- 
formity of legislation was felt to be needful. The irriga- 
tion question, one of great importance for so arid a 
country, brings New South Wales, where some of the 
large rivers have their source, into close relation with 
Victoria and South Australia, and requires to be treated 
on common lines. These and other grounds led to an 
Inter-Colonial Conference of Ministers at Melbourne in 
1890, and then to the summoning of a Convention of 
Delegates from the Parliaments of all the Colonies, in- 
cluding Tasmania. This latter body, which included 
many leading men, met at Sydney in 1891, debated the 
matter with great ability, and produced a Draft Bill, 
which became the basis of all subsequent discussions. 
The movement, hitherto confined to a group of political 
leaders, now began to be taken up by the people, and be- 
came, especially when the financial troubles of 1893 had 
begun to pass away, the principal subject in men's minds. 
That crisis had shown all the Colonies how closely their 
interests were bound together, and had made them de- 
sire to remove every hindrance to an industrial and 
financial recovery. A Conference of Prime Ministers 
at Hobart in 1895 ^^^ to the passing by the several Co- 



.276 THE AUSTRALIAN COMMONWEALTH 

lonial Parliaments of enabling Acts under which dele- 
gates were chosen, this time (following recent American 
precedents) by popular vote, to a new Convention which 
met at Adelaide (in South Australia) in 1897. It pro- 
duced a second draft constitution, based on that of 1891, 
and laid it before the legislatures of the Colonies for 
criticism. About seventy-five amendments were pro- 
posed, and w^ere considered by the Convention at its 
further sittings, which closed in March, 1898. The draft 
Constitution was then submitted to a popular vote, a 
new expedient in the British dominions, but one amply 
justified by the need for associating the people with the 
work. New South Wales alone failed to adopt it by the 
prescribed majority, because a large section of her in- 
habitants thought that her interests had not been duly 
regarded, but after a few amendments had been in- 
serted at a conference of the Colonial Prime Ministers, 
her people ratified it upon a second vote. On this vote 
enormous majorities were secured in Victoria, South 
Australia and Tasmania, smaller ones in New South 
Wales and Queensland. The Constitution was then sent 
to England and passed into law by the Parliament of 
the United Kingdom under the title of The Common- 
wealth of Australia Constitution Act (63 & 64 Vict, 
cap. 12). Action by the Imperial Parliament was not 
only a convenient way of overriding all the colonial con- 
stitutions by one comprehensive Act, but was legally 
necessary, inasmuch as some provisions of the Consti- 
tution transcended the powers of all the colonial legisla- 
tures taken together. Since it had from the first been 
understood that the wish of the mother country was not 
to impose her own views but simply to carry out the 
wishes of the Colonies, only one slight alteration, an 
alteration rather of form than substance, was made in 
the draft as transmitted from Australia, the ill-con- 
sidered notion of introducing a larger change having 
been eventually dropped by the British Ministry. 

I have mentioned these details in order to emphasize 



TEE AUSTRALIAN COMMONWEALTH 277 

the time, care and pains bestowed by the AustraHans — 
for the work was entirely their own — upon this latest 
effort of constructive statesmanship. The Constitution 
of the United States was framed by a Convention which 
sat at Philadelphia, with closed doors, for nearly five 
months, and was accepted by Conventions in all the 
thirteen States without change, though ten amendments 
were immediately thereafter passed by general consent, 
their adoption having been the price paid for the ratifi- 
cation of the main instrument by some doubtful States. 

The Constitution of Canada took a little more than 
two years to settle. The Resolutions on which it was 
based were first of all drafted by a conference of dele- 
gates at Quebec. These were approved after full debate 
by the legislatures of the Provinces, and were, after 
some modifications, embodied in a Bill prepared by a 
small conference of Canadian statesmen who met in 
London. The Bill was then passed by the Imperial Par- 
liament, never having been submitted to any popular 
vote. But this Australian instrument is the fruit of de- 
bates in two Conventions, of a minute examination by 
legislatures, of a subsequent revision by the second Con- 
vention, of further modifications in a few details by a 
conference of Prime Ministers, and has after all this 
preparation been sealed by the approval of the peoples 
of the Colonies concerned. The process of incubation 
lasted for nearly nine years, being all the while conducted 
in the full blaze of newspaper reporting and under the 
constant oversight of public opinion. 

III. The Causes which brought about Federation. 

The reasons and grounds assigned by the advocates 
of Federation were more numerous than those urged in 
the United States in 1787-9, or in Canada in 1864-6; 
but none of them were so imperative, for the Australian 
Colonies were far less seriously menaced by actually 
insistent evils, due to the want of a common national 



278 THE AUSTRALIAN COMMONWEALTH 

Government, than was the welfare either of the Ameri- 
can States in 1787, or of Switzerland in 1848, or of Ca- 
nada in 1867. In North America, it was the growing 
and indeed hopeless weakness and poverty of the exist- 
ing Confederation, coupled with the barriers to com- 
mercial intercourse, the confusion and depreciation of 
currency, and the financial demoralization of some of 
the States, all of which had just emerged from an ex- 
hausting war, that drew the wisest minds of the nation 
to Philadelphia, induced them to persist in efforts to 
devise a better union, and enabled them to force its ac- 
ceptance upon a people largely reluctant. In Switzer- 
land it was the War of Secession (the so-called Sonder- 
bund war) of 1847 that compelled the victorious party to 
substitute a new and truly federal constitution for the 
league which had proved too weak. In Canada the re- 
lations of the French-speaking and English-speaking 
Provinces (Lower and Upper Canada) had become so 
awkward that constitutional government was being 
practically brought to a standstill, and nothing remained 
but that the leaders of the two parties should devise 
some new system. Australia was in no such straits. 
Her colonies might have continued to go on and prosper, 
as six unconnected self-governing communities. It is 
therefore all the more to the credit of her people that 
they forwent the pleasures of local independence which 
are so dear to vivacious democracies, perceiving that 
although necessity might not dictate a federal union, 
reason recommended it. 

The grounds which were used in argument to urge 
the adoption of the Federal Constitution may be summed 
up as follows : — 

The gain to trade and the general convenience to be 
expected from abolishing the tariffs established on 
the frontiers of each colony. 

The need for a common system of military defence. 

The advantages of a common legislation for the regu- 
lation of railways and the fixing of railway rates. 



THE AUSTRALIAN COMMONWEALTH 279 

The advantages of a common control of the larger 
rivers for the purposes both of navigation and of 
irrigation. 
The need for uniform legislation on a number of com- 
mercial and industrial topics. 
The importance of finding an authority competent to 
provide for old-age pensions and for the settlement 
of labour disputes all over the country. 
The need for uniform provisions against the entrance 
of coloured races (especially Chinese, Malays, and 
Indian coolies). 
The gain to suitors from the establishment of a High 
Court to entertain appeals and avoid the expense 
and delay involved in carrying cases to the Privy 
Council in England. 
The probability that money could be borrowed more 
easily on the credit of an Australian Federation than 
by each colony for itself. 
The stimulus to be given to industry and trade by sub- 
stituting one great community for six smaller ones. 
The possibility of making better arrangements for the 
disposal of the unappropriated lands belonging to 
some of the colonies than could be made by those 
colonies for themselves. 
There was in these arguments something to move 
every class in the community. To the commercial 
classes, the prospect of getting rid of custom-houses and 
of finding a large free market close at hand for all pro- 
ducts was attractive ; as was also that of sweeping away 
the vexation of railway rates planned in the interests of 
each colony rather than for the common benefit of trade. 
Large-minded men, thinkers as well as statesmen, hoped 
that a wider field would bring a loftier spirit into pubhc 
life. The working-classes might expect,, not only ad- 
vantages in the way of brisker emplo3^ment, but the es- 
tablishment of that provision for old age and sickness 
which a Government covering the whole country and 
commanding ample resources could make more effi- 



280 THE AU8TRALIAX COilMOXWEALTH 

ciently and on more uniform lines than even the richest 
colony could do. Some of these grounds for union 
measure the distance which the world has travelled since 
1788. Railways are far older than was self-government 
in the oldest xA^ustralian colony, far younger than the 
3^oungest of the original thirteen American States. 
Even so late as 1867, when Canada was confederated, 
no one thought of suggesting that the State should pro- 
vide old-age pensions. 

The opponents of Australian Federation, although 
they came more and more to feel their cause hopeless, 
were an active party, including many influential men. 
Besides denying that the benefits just enumerated w^ould 
be attained, they dwelt upon the additional cost which a 
new Government, superadded to the existing ones, must 
entail. They fanned the jealousies which naturally exist 
between small and large communities, telling the former 
that they would be overborne in voting, and the latter 
that they would suffer in purse ; and they wound up with 
the usual and often legitimate appeals to local sentiment. 

The arguments drawn from considerations of expense 
and from local jealousies were met by a series of in- 
genious compromises and financial devices to which 
both the larger and smaller colonies were persuaded to 
agree, while the love of each community for its own po- 
litical independence was overborne by the rising tide of 
national sentiment. An ambition which aspired to make 
Australia take its place in the world as a great nation, 
mistress of the Southern hemisphere, had been growing 
for some time with the growth of a new generation 
born in the new home, and was powerfully roused by the 
vision of a Federal Government which should resemble 
that of the United States and warn off intruders in the 
Western Pacific, as the American Republic had an- 
nounced by the pen of President Monroe that she would 
do on the North-American Continent. The same na- 
tionally self-assertive spirit and desire for expansion 
which has recently spurred four great European Powers 
26 



THE AU STB ALT AN COMMONWEALTH 281 

into a rivalry for new colonial possessions, and which 
in 1899 made the United States forswear its old-estab- 
lished principles of policy, has been astir in the mind of 
the Australians. It had been stimulated by the example 
of a similar spirit in the mother country, and by the com- 
pliments which the English had now begun to lavish 
upon their colonies. It had gained strength with the 
growth to manhood of a generation born in Australia, 
and nurtured in Australian patriotism. Such a patriot- 
ism, finding no fit scope in devotion to the particular 
colonies, longed for a larger ideal. It supplied the mo- 
tive force needed to create a national union. Without 
it, all the sober reasonings which counselled confedera- 
tion might have failed to prevail. No equally strenuous 
or forward-reaching spirit moved the Canadians in 
1867, nor are the traces of such a spirit conspicuous in 
the American debates of 1787-9. Some men were then 
solicitous for liberty, others for order and good govern- 
ment, but of imperial greatness in the present sense of 
the term little was said. Liberty and peace at home, 
not military strength and domination abroad, were the 
national ideals of those days. 

The history of the Federation movement illustrates 
the truth that a great change is seldom effected in po- 
litics save by the coincidence of two moving forces — 
the prospect of material advantage and the power of 
sentiment. In every community there are many who 
can be moved only by one or other of these two forces, 
and nearly every man responds better to the first if he 
can be warmed by the second. In the American de- 
bates of 1788-9 feeling was mostly arrayed against the 
proposed federation, though reason was almost entirely 
for it. Reason prevailed, but prevailed with far more 
difficulty than the cause of Federalism, with less cogent 
economic grounds behind it, prevailed in Australia. 

Like America in 1787, Australia was fortunate in hav- 
ing a group of able statesmen, most of whom were also 
lawyers, and so doubly qualified for the task of prepar- 



282 ■ THE AUSTEALIAX COlIMOyWEALTH 

ing a constitution. Their learning, tlieir acuteness, and 
their mastery of constitutional principles can best be 
appreciated by any one who will peruse the interesting 
debates in the two Conventions. They used the experi- 
ence of the mother country and of their predecessors in 
the work of federation-making, but they did so in no 
slavish spirit, choosing from the doctrines of England 
and from the rules of America, Switzerland, and Canada 
those which seemed best fitted to the special conditions 
of their own country. And like the founders of the 
American and Canadian Unions, they were not only 
guided by a clear practical sense, but were animated by 
a spirit of reasonable compromise, a spirit which pro- 
mises well for the conduct of government under the in- 
strument which they have framed. 

IV. The Conditions for a Federal 
Commonwealth. 

Before examining the provisions of the Constitution 
which is bringing the hitherto independent colonies into 
one political body, it is well to consider for a moment 
the territory and the inhabitants that are to be thus 
united. 

The total area of Australia is nearly 3,000,000 square 
miles, not much less than that of Europe. Of this a 
comparatively small part is peopled by white men, for 
the interior, as well as vast tracts stretching inland 
from the south-western and north-western coasts, is 
almost rainless, and supplies, even in its better districts, 
nothing more than a scanty growth of shrubs. Aluch 
of it is lower than the regions towards the coast, and 
parts are but little above sea-level. It has been hitherto 
deemed incapable of supporting human settlement, and 
unfit even for such ranching as is practised on arid 
tracts in western North America and in South Africa. 
Modern science has brought so many unexpected things 
to pass, that this conclusion may prove to have been 



THE AUSTRALIAN COMMONWEALTH 283 

too hasty. Still no growth of population in the interior 
can be looked for corresponding to that which marked 
the development of the United States west of the AUe- 
ghanies in the beginning of the nineteenth century. 

Of the six Australian colonies, one, Tasmania, occu- 
pies an island of its own, fertile and beautiful, but rather 
smaller (26,000 square miles) than Scotland or South 
Carolina. It lies 150 miles from the coast of Victoria. 
Western Australia covers an enormous area (nearly 
1,000,000 square miles, between three and four times 
the size of Texas), and South Australia, which stretches 
right across the Continent to the Gulf of Carpentaria, 
is almost as large (a little over 900,000 squane miles). 
Queensland is smaller, with 668,000 square miles ; New 
South Wales, on the other hand, has only 310,000 square 
miles (i.e. is rather larger than Sweden and Norway and 
about the size of California, Oregon and Washington 
put together); Victoria only 87,000 {i.e. is as large as 
Great Britain and a little larger than Idaho). The coun- 
try (including Tasmania) stretches from north to south 
over 32° of latitude (11° S. to 43° S.), a wider range 
than that of the United States (lat. 49° N. to 26° N.). 
There are thus even greater contrasts of climate than 
in the last-named country, for though the Tasmanian 
winters are less cold than those of Montana, the tropi- 
cal heats of North Queensland and the shores of the 
Gulf of Carpentaria exceed any temperature reached in 
Louisiana and Texas. Fortunately, Northern Australia 
is, for its latitude, comparatively free from malarial fe- 
vers. But it is too hot for the out-door labour of white 
men. In these marked physical differences between the 
extremities of the Continent there lie sources whence 
may spring divergences not only of material interests 
but ultimately even of character, divergences compa- 
rable to those which made the Gulf States of the Ameri- 
can Union find themselves drawn apart from the States 
of the North Atlantic and Great Lakes. 

It must also be noted that the great central wilderness 



•284 THE AUSTRALIAX COMMOXWEALTH 

cuts off not only the tropical north and north-west, but 
also the more temperate parts of the west from the 
thickly peopled regions of the south-west. \\'estern 
Australia communicates with her Eastern sisters only 
by a long sea voyage^. She is almost in the position 
held by California when, before the making of the first 
transcontinental railway, people went from Xew York 
to San Francisco via Panama. Xor is there much pro- 
spect that settlements will arise here and there in the in- 
tervening desert. 

The population of the Continent, which has now 
reached nearly 4,000,000. is very unequally distributed. 
The three colonies of widest area, \A estern Australia, 
South Australia, and Queensland, have none of them 
500,000 inhabitants. Tasmania has about 170,000. Two 
others, Xew South A\'ales and Mctoria, have each 
more than 1,000,000 2. This disparity ranges them for 
political purposes into two groups, the large ones with 
2,500,000 people in two colonies, and the small ones with 
1,500,000 in four colonies. 

Against these two sets of differences, physical and 
social, which might be expected to induce an opposition 
of economic and political interests, there is to be placed 
the fact that the Australian colonies are singularly ho- 
mogeneous in population. British Xorth America is 
peopled by a French as well as by an English race, 
British South Africa by a Dutch race as well as an Eng- 
lish. But Australia is purely British. Even the Irish 
and the Scotch, though both races are specially prone to 
emigrate, seem less conspicuous than they are in Ca- 
nada ". Australia is to-day almost as purely English as 
Massachusetts, Connecticut, and A'irginia were in 1776, 

' It is four days' voyage from Adelaide, the capital of S. Australia, to Perth, the 
capital of W. Australia. 

2 Two-fifths of the population of Victoria live in Melbourne, one-fourth of the 
population of Xew South Wales in Sj'dney. 

3 In 1891, out of that part of the total population of Australia which had been 
born in the United Kingdom, about one-fourth had been born in Ireland and one- 
sLxth in Scotland. Of the whole population of Australia, 95 per cent, are of British 
stock. 



THE AUi^STHALlAN COMMONWEALTH 285 

and probably more English than were the thirteen origi- 
nal States taken as a whole. In this fact the colonies 
found not only an inducement to a closer union, but a se- 
curity against the occurrence of one of the dangers which 
most frequently threatens the internal concord of a fede- 
ration. Race antagonisms have troubled not only Ca- 
nada and South Africa but the United Kingdom itself, 
and they now constitute the gravest of the perils that sur- 
round the Austro-Hungarian monarchy. 

Among the other favouring conditions may be enu- 
merated the use of one language only (whereas in Ca- 
nada and in South Africa two are spoken), the existence 
of one system of law, the experience of the same form 
of political institutions, a form modelled on that which 
the venerable traditions of the mother country have en- 
deared to Englishmen in all parts of the world. It has 
also been a piece of good fortune that religion has not 
interposed any grounds for jealousy or division. The 
population of Australia is divided among various Chris- 
tian denominations very much as the population of Eng- 
land is, and the chief difference between the old and the 
new country lies in the greater friendliness to one an- 
other of various communions which exists in the new 
country, a happy result due partly to the absence of any 
State Establishment of religion, and partly to that sense 
of social equality wdiich is strong enough to condemn 
any attempt on the part of one religious body to claim 
social superiority over the others. 

Finally, there is the unique position which Australia 
occupies. She has a perfect natural frontier, because 
she is surrounded by the sea, an island continent, so 
far removed from all other civilized nations that she is 
not likely to be either threatened by their attacks or 
entangled in their alliances. The United States had, 
when its career began, British possessions on the north, 
French and Spanish on the south. But the tropical 
islands which Holland, Germany and France claim as 
theirs to the north and east of the Australian coasts are 



286 THE AUSTEALIAX COMMOXWEALTH 

cut off by a wide stretch of ocean ^ . They are not now, 
and are not Hkely at any time we can foresee, to con- 
tain a white population capable of disturbing the repose 
' of Australia. Such a country seems made for one na- 
tion, though the fact that its settled regions lie scattered 
roimd a vast central wilderness suggests that it is better 
fitted for a federation than for a government of the uni- 
fied type. But, on the other hand, this very remoteness 
might, in removing the force of external pressure, have 
weakened the sense of need for a federal union had there 
not existed that homogeneity of race and that aspiring 
national sentiment to which I have adverted. 

Compare these conditions with those of the three 
other Federations. The thirteen colonies which have 
grown into the present forty-five States of the American 
Union lay, continuous with one another, along the coast 
of the Atlantic. England held Canada to the north of 
them, France held the ^Mississippi Valley to the west of 
them, and, still further to the west, Spain held the coasts 
of the Pacific. They had at that time no natural boun- 
daries on land ; and the forces that drew them together 
were local contiguity, race unity, and above all, the sense 
that they must combine to protect themselves against 
powerful neighbours as well as against the evils which 
had become so painfully evident in the governments of 
the several States. Nature prescribed union, though 
few dreamt that Xature meant that union to cover the 
whole central belt of a Continent. In the case of Ca- 
nada, Xature spoke with a more doubtful voice. She 
might rather have appeared to suggest that this long 
and narrow strip of habitable but only partially inhabited 
land, stretching from the Gulf of St. Lawrence to Puget 
Sound, should either all of it unite with its mighty neigh- 
bour to the south, or should form three or four separate 
groups, separated by intervening wildernesses. Poli- 
tical feelings hoAvever, compounded of attachment to 
Britain and a proud resolve not to be merged in a rival 

1 The nearest point of Dutch New Guinea is about 150 miles from Australia. 



THE AUSTRALIAN COMMONWEALTH 287 

power which had done nothing to concihate them, led 
the Canadians to form a confederation of their own, 
which Nature has blessed in this point at least, that its 
territories are so similar in climate and in conditions for 
industrial growth that few economic antagonisms seem 
likely to arise among them. Switzerland, however, is 
the most remarkable case of a Federation formed by 
historical causes in the very teeth, as it might seem, 
of ethnological obstacles. Three races, speaking three 
languages, have been so squeezed together by formida- 
ble neighbours as to have grown into one. The help of 
Nature has however been given in providing them with 
mountain fastnesses from which the armies of those 
neighbours could be resisted; and the physical charac- 
ter of the country has joined with the traditions of 
a splendid warlike heroism in creating a patriotism 
perhaps more intense than any other in the modern 
world. 

V. The Constitution as a Federal Instrument. 

In examining any Federal Constitution, it is con- 
venient to consider the system it creates first as a Fede- 
ration, i.e. a contrivance for holding minor communi- 
ties together in a greater one ; and then as a Frame of 
Government, composed of organs for discharging the 
various functions of administration. Although the for- 
mer of these influences the latter, because the federal 
character of a State prescribes to some extent the cha- 
racter of that State's governmental machinery, it con- 
duces to clearness to deal with these two aspects sepa- 
rately. Accordingly I begin with the federal aspect of 
the Constitution. 

Federations are of two kinds. In some, the supreme 
power of the Central Government acts upon the com- 
munities which make it up only as communities. In 
others this power acts directly, not only upon the com- 
ponent communities, but also upon the individual citi- 



288 THE AUtSTEALIAX COM^IOXWEALTH 

zens as being citizens of the Nation no less than of the 
several communities. The former kind of Federation 
may be described as really a mere League of States ; the 
latter kind is a National as well as a Federal State. 

The Australian Federation is of this latter type. So 
are the United States, the Swiss Confederation, and the 
Canadian Federation. It was however to the former 
type that both the United States before 1788 and Swit- 
zerland before 1848 belonged. So Germany was a mere 
League of States before 1866, but has been a National 
as well as Federal State since 1866 and 1871. 

The essential feature of this latter type, with which 
alone we are here henceforth concerned, consists in the 
existence above, every individual citizen of two authori- 
ties, that of the State, or Canton (as in Switzerland) or 
Province (as in Canada), to which he belongs, and that 
of the Nation, which includes all the States, and operates 
with equal force upon all their citizens alike. Thus each 
citizen has an allegiance which is double, being due both 
to his own particular State and to the Nation. He lives 
under two sets of laws, the laws of his State and the laws 
of the Nation. He obeys two sets of officials, those of 
his State and those of the Nation, and pays two sets of 
taxes, besides whatever local taxes or rates his city or 
county may impose. 

Accordingly the character of each and every Federa- 
tion depends upon the distribution of powers between 
the Nation and the several States, since some powers 
must be allotted to the larger, some to the smaller 
entity. With regard to certain powers there can be no 
doubt. The navy, for instance, the post-office, the con- 
trol of all foreign relations, must obviously be assigned 
to the National Government, together with the levying 
of customs duties at the frontiers and the raising of reve- 
nue for the purposes above mentioned. On the other 
hand, matters of an evidently local nature, such as police, 
prisons and asylums, the system of municipal or county 
administration, with the power of taxing for these pur- 



THE AUSTRALIAN COMMONWEALTH 289 

poses, will be allotted to the State Governments. But 
between these two sets there lies a large field of legisla- 
tion and administration which may, according to the 
circumstances of each particular country and the wishes 
of the people who enact their constitution, be granted 
either to the Nation or to the States. The law of mar- 
riage and divorce, for instance ^ criminal law ^ bank- 
ruptcy, the traffic in intoxicating liquors ^, the regulation 
of railways -, the provision of schools or universities ^, 
are all matters which have both a national and a local 
significance, and may be entrusted either to the National 
legislature or to the State legislatures according as one 
or other aspect of them predominates in the mind of the 
people. 

VI. Distribution of Powers between Nation 
AiifD States. 

Now the fundamental question in the distribution of 
powers between the Nation and the States is this — To 
which authority does the unallotted residue of powers 
belong? It has been found that no distribution, how- 
ever careful, can exhaust beforehand all the powers that 
a legislature or an executive may possibly have to exer- 
cise, and it therefore becomes essential to provide, when- 
ever a power not specifically mentioned needs to be ex- 
ercised, whether it should be deemed to be rightfully 
exerciseable by the National or by the State autho- 
rity. In other words, which of these authorities is 
to be deemed general legatee of any undistributed 
residue ? 

This question has been answered differently by dif- 
ferent Federations. The United States and Switzerland 
leave to the States (to which they had belonged pre- 

' In the U. S. A. a State, in Canada a Federal matter. 

2 In Switzerland a Federal matter, in the U. S. A. partly a Federal, partly a 
State matter. 

3 In the U. S. A. and Germany a State matter, in Switzerland and Canada partly 
a Federal matter.' 



290 TEE AUSTBALIAX C02IM0XWEALTH 

viously) the undistributed powers. Canada (whose Pro- 
vinces were in a different position) bestows tliem upon 
the National (Dominion) Government^. The question 
is the more important, because it creates in all sorts of 
doubtful matters a presumption in favour of the Na- 
tional Government or the State Governments, as the 
case may be. And it is specially important at the mo- 
ment of creating a new Federation, because one of the 
difficulties always then experienced is to induce the 
States to resign powers they have hitherto enjoyed. 
Hence it reassures and comforts them to have the resi- 
due of powers not specifically distributed left still in 
their hands. 

The Australians have followed the example of the 
United States and Switzerland rather than that of Ca- 
nada ; and they have done so for the sake of appeasing 
the local sentiment of the several. colonies, and especially 
of the smaller colonies, who naturally feared that, as 
they would have less weight than their larger neighbours 
in the national legislature, they would be in more danger 
of being subjected to laws which their local opinion did 
not approve. Section 107 provides that — 

' Every power of the Parliament of a Colony which 
has become or becomes a State shall, unless it is by this 
Constitution exclusively vested in the Parliament of the 
Commonwealth or withdrawn from the Parliament of 
the State, continue as at the establishment of the Com- 
monwealth, or as at the admission or establishment of 
the State ^, as the case may be.' 

Comparatively few powers of legislation are ' exclu- 
sively vested ' in the Commonwealth Parliament ; so that 
upon subjects other than these the State Parliaments 
retain for the present their previous power to legislate. 

1 See'U. S. A. Constitution, Amendment X : Constitution of Swiss Confederation, 
Art. 3 : British North American Act (1867), sect. 91. 

2 These words are used to cover the case of the creation and admission of future 
States. 

The name ' State,' which the Australians have substituted for ' Colonies,' is sig-- 
nificant. It imports a slightly greater independence and has a more imposing sound 
than the Canadian term ' Province.' 



THE AUSTRALIAN COMMONWEALTH 291 

But as it is also provided that all Acts of the Com- 
monwealth Parliament, within the range of the powers 
granted, shall override laws of any State Parliament, 
such laws as the latter may pass upon subjects open 
to both legislatures are left at the mercy of the Com- 
monwealth Parliament, which may, as and when it finds 
time or occasion, pass Acts extinguishing, or modifying 
the effect of, those enacted by the States. 

Now the range of powers granted to the National or 
Commonwealth Parliament is very wide, wider than that 
of Congress or of the Swiss National Assembly, or even 
of the Dominion Parliament in Canada. I need not enu- 
merate the powers granted, forty-two in number, for 
they will be found in sects. 52 and 53 of the Australian 
Constitution. Among them are the following, which are 
not specifically given to, and nearly all of which are not 
even claimed by, the United States Congress : — Powers 
to take over State railways, and to construct and extend 
railways (with the consent of the State in which the 
railway lies), to control telegraphs and telephones and 
also trading and financial corporations, to take over 
State debts 1, to legislate on marriage and divorce, on 
bills of exchange and promissory notes, on invalid and 
old-age pensions, on arbitration and conciliation in trade 
disputes (where these extend beyond one State), on 
bounties on the production or export of goods, on the 
service and execution throughout the Commonwealth 
of the civil and criminal process and judgements of the 
State Courts. If these powers come to be all put in force 
they may leave for State action a narrower and less in- 
teresting field than it enjoys in the United States, where 
nevertheless the State legislatures are bodies of no great 
account, seldom enlisting the services of men of first- 
rate capacity. 

1 Canada directs the Dominion to take over the Provincial debts existing at the 
time of the Union. In the U. S. A. the war debts of the States were talcen over by 
the first Congress of the Union. 



292 THE AUSTRALIAX COMMOXWEALTH 

VII. Constitutional Position of the Austra- 
lian States. 

The Australian Constitution, like that of the United 
States, assumes the States to be already organized com- 
munities, and contains nothing regarding their consti- 
tutions. The case of Canada was diflferent, because there 
the previous government of the Upper and Lower Pro- 
vinces, which had been one, had to be cut in two, and ar- 
rangements made for duly constituting the two halves. 
But in the case of Australia, the pre-existing constitu- 
tions of the Colonies, granted by the Imperial Govern- 
ment at various times, go on unchanged, subject only 
to the supersession of some of their functions by the 
Commonwealth, and to one or two specifically men- 
tioned restrictions. That these restrictions are compa- 
ratively few may be partly ascribed to that aversion 
which the English everywhere show to this kind of safe- 
guard against the misuse of legislature power. The 
omnipotence of the British Parliament seems to have 
fostered the notion that all Parliaments ought to be free 
to do wrong as well as to do right. The only things from 
which a State is disabled are the keeping of a naval or 
military force (except with the consent of the Common- 
wealth Parliament), coining money, and making any- 
thing but gold and silver coin legal tender i. A State 
is not, as are the American States, forbidden to grant 
titles of nobility, or to pass any c.v post facto law or law 
' impairing the obligation of contracts.' That no such 
prohibitions exist in Canada may be ascribed to the fact 
that in Canada the National or Dominion Government 
has the right of vetoing laws passed by provincial 
legislatures, so that improper legislation can be in this 
way checked. The power is not often exercised in Ca- 
nada, but when exercised has sometimes led to friction. 
This plan, however, is neither so respectful to the Pro- 

1 See sections 114 and 115 of Constitution, and compare Art. I. sect. 10 of Consti- 
tution of L^. S. A. 



THE AUSTI^ALIAN COM MO S WEALTH 293 

vinces nor so conformable to general principles as is 
the American plan, which leaves the States subject only 
to the restrictions imposed by the Constitution, restric- 
tions which i[>so inrc annul a law attempting to transgress 
them. And the Australians have wisely followed the 
American rather than the Canadian precedent. The 
Australians have, to be sure, in reserve a power to 
which nothing similar exists in America, viz. the right 
of the British Crown at home to veto legislation. Rarely . 
as this right is put in force, it might conceivably be used 
at the instance of the National Government to avert an 
undesirable conflict between State statutes and National 
statutes. Note further that each Australian State is 
left as free to amend its own constitution as it was 
before, subject of course to the veto of the British 
Crown, but to no interference by the Commonwealth, 
whereas in Canada acts of the Provincial legislatures 
amending their constitutions are subject to the veto 
of the Dominion Government as representing the 
Crown. 

The omission of any provision similar to the famous 
and much litigated clause which debars an American 
State legislature from passing any law impairing the 
obligation of contracts is especially noteworthy. That 
clause, introduced by the Philadelphia Convention in 
order to check the tendency of some reckless States to 
get rid of their debts, produced in course of time un- 
expectedly far-reaching results, from some of which 
American legislatures and courts have made ingenious 
attempts to escape. It has indeed been thought that 
several subsequent decisions of the Supreme Court are 
not easily reconcileable with the famous judgement in 
the Dartmouth College Case (a.d. i8i8), in which the 
full effect of this clause was for the first time displayed. 
That effect has been to fetter legislation in ways which 
are found so inconvenient in practice that they are 
acquiesced in only because many State legislatures are 
in the United States objects of popular distrust. No 



294 THE AUSTBALIAX COMAIOXWEALTH 

corresponding distrust seems to be felt in the British 
colonies, and therefore the Australians have not deemed 
any such prohibition needful, following the example of 
the British House of Commons, which in 1893 rejected 
a similar clause when moved as an amendment to the 
Irish Home Rule Bill of that year. 

In another point the Australian States have been 
treated with respect. In each of them the nominal ex- 
ecutive head has hitherto been a Governor appointed 
by the British Crown. This was the case in Canada 
prior to 1867: but when the Canadian Federation was 
formed, the appointment of the Governors of the several 
provinces was entrusted to the Governor-General of the 
Dominion, that is to say, to the Dominion Cabinet by 
whose advice the Governor-General, being a sort of 
constitutional monarch, is guided. In practice, there- 
fore, these governorships have become rewards be- 
stowed upon leading party politicians. The Austra- 
lians wisely (as most Englishmen will think) avoided 
this plan. Xeither did they adopt the American method 
of letting the people of each State elect the Governor, 
a method unsuited to government on the Cabinet sys- 
tem, because, as the State Governor is under that system 
only a nominal head of the Executive (the Cabinet being 
the real Executive), there was no good reason for set- 
ting the people to choose him, and good reasons against 
doing so, inasmuch as popular elections are invariably 
fought on party lines. Accordingly the Australians have 
preferred to let him continue to be appointed by the 
Home Government, and to allow him to communicate 
directly with the Colonial Office in London. His Mini- 
sters are indeed described in the Constitution (sect. 44) 
as being ' the Queen's Ministers.' 



THE AUSTRALIAN COMMONWEALTH 295 

VIII. Differences from the United States 
AND Canadian Federations. 

Four other remarkable divergences, from both the 
American and the Canadian Federal systems, remain 
to be mentioned. 

One relates to the judiciary. In the United States 
there is a complete system of Federal Courts ramify- 
ing all over the Union and exercising exclusive juris- 
diction in all cases arising under Federal statutes, as 
well as in a number of other matters specified in Art. 
III. sect. 2 of the Constitution. But the State Courts 
remain quite independent in all State matters, and de- 
termine the interpretation of the State Constitutions 
and of all State statutes, nor does any appeal lie from 
them to the Federal Courts. In Canada this was not 
thought necessary, so there the same set of Courts 
deals with questions arising under Federal statutes and 
with those arising under Provincial Statutes, and the 
Supreme Court of Canada receives appeals from all other 
Courts. This is less conformable to theory than the 
United States plan, but does not seem to have worked 
ill. The danger that Courts sitting in the Provinces 
would, under the influence of local feeling, pervert Fede- 
ral law was not serious in Canada (though a similar 
danger was feared in the United States in 1787), and 
indeed all the Canadian judges are appointed by the Do- 
minion Government, a further illustration of the pre- 
ponderance which the Nation has over the Provinces. 
The Australians have taken a middle course. They have 
established a Federal Supreme Court, to be called ' The 
High Court of Australia,' and have taken power for their 
Parliament to create other Federal Courts. So far, they 
follow the United States precedent. But they have 
given power to the Commonwealth Parliament to invest 
State Courts with federal jurisdiction, thereby allowing 
those Courts to be, as in Canada, both State and Federal. 
And they have also allowed an appeal from all State 



296 THE AUSTRALIAN COMAIOXWEALTH 

Courts to the Federal High Court. By this plan the 
States are more directly connected with and subordinate 
to the National Government than they are in the United 
States. The Australian scheme has one great incidental 
advantage. In the United States the law of different 
States may and does differ, not only in respect of the 
difference between the statutes of one and the statutes 
of another, but also in respect of questions of common 
law untouched by statutes. The Supreme Court of 
Massachusetts ma}-, for instance, take a different view 
of what constitutes fraud at common law from that taken 
by the Supreme Court of Pennsylvania, and there is no 
Court of Appeal above both these Courts to bring their 
views into accord. This has not happened to any great 
extent in Australia, because the British Privy Council 
has entertained appeals from all its Courts, and it will 
happen still less in futvire, because the Federal High 
Court will be close at hand to settle questions on 
which the Courts of different States may have been in 
disaccord. 

A second point shows how much less powerful the 
sentiment of State sovereignty has been in Australia 
than it was in the United States. By an amend- 
ment (xi) to the American Constitution made in 1798 
it is expressly declared that no State can be sued by 
a private plaintiff. But Australia expressly grants 
jurisdiction in such cases to its Federal High Court 
(sect. 75). 

A third point is the curious and novel power given 
to a State of referring matters to the Commonwealth 
ParHament, and to that Parliament of thereupon legis- 
lating on such matters (sect. 51 (xxxvii)). Under this 
provision (which is not to be found in the Canadian Con- 
stitution 1) there is no department of State law where- 
with the National legislature may not be rendered com- 
petent to deal. It may be usefully employed to secure 
uniformity of legislation over all Australia on a number 

1 But see section 94 of the Canadian Constitution. 

27 



THE AUSTRALIAN COMMONWEALTH 297 

of subjects not within the specifically allotted field of the 
Commonwealth Parliament. 

Finally, the Commonwealth Parliament may grant 
financial assistance to any State, and may take over the 
whole or a part of its debts as existing at the establish- 
ment of the Commonwealth ^. Provisions such as these 
imply, or will involve if put in practice, a relation be- 
tween the National Government and the States closer 
than that which exists in America. 

To complete this account of the relation of the Na- 
tion to the States, let it be noted that a State may sur- 
render any part of its territory to the Commonwealth, 
and that the Commonwealth is bound to protect each 
State against invasion or, on the application of the Ex- 
ecutive of the State, against domestic violence ^. This 
latter provision is drawn from the United States con- 
stitution ^, though in America it is from the State legisla- 
ture, if then in session, that the application for protec- 
tion ought to come. Australia is right in her variation, 
because in her States the Legislature acts through the 
Executive. Neither provision occurs in the Constitu- 
tion of Canada, which assigns military and naval defence 
exclusively to the Dominion Government, and makes 
itself responsible for the maintenance of order every- 
where. In Switzerland the management of the army, 
in which all citizens are bound to serve, is divided be- 
tween Cantons and Confederation, the supreme control 
remaining with the latter (Artt. 18-22). The Confedera- 
tion is bound to protect a Canton against invasion and 
disorders, and may even itself intervene if the Executive 
of the Canton cannot ask it on its own motion (Artt. 16 
and 17). Australia, as we have seen, allows the States to 
maintain a force with the consent of the Commonwealth; 
and this is permitted by the American Constitution also. 

' Sect. 105. ' Sect. 119. ^ Art. II. sect. 3, and Art. IV. sect. 4 



298 THE AmTBALIAX COilMOXWEALTH 



IX. The Constitution as a Frame of National 
Government. 

We may now pass on to consider the National Gov- 
ernment, the construction whereof occupies by far the 
greater part of the Constitution, which, while it left the 
States pretty much as they were, had here to build up 
a new system from the ground. 

The first point to be examined relates to the limita- 
tions imposed on the National Government as against 
the citizens generally, since I have already dealt with the 
limitations on its powers as against the States. Here a 
remarkable divergence from the American Constitution 
is disclosed. When that instrument was enacted, the 
keenest suspicion and jealousy was felt of the action of 
the Government to be established under it. It was 
feared that Congress might become an illiberal oligarchy 
and the President a new George the Third. Accordingly 
great pains were taken to debar Congress from doing 
anything which could infringe the primordial human 
rights of the citizen. Some restrictions are contained 
in the original Constitution : others fill the first nine 
amendments which were passed two or three years later, 
as a part of the arrangements by which the acceptance 
of the Constitution was secured. And down till our own 
time every State Constitution in America has continued 
to contain a similar ' Bill of Rights ' for the protection 
of the citizens against abuse of legislative power. The 
English, however, have completely forgotten these old 
suspicions, which, when they did exist, attached to the 
Crown and not to the Legislature. So when Englishmen 
in Canada or Australia enact new Constitutions, they 
take no heed of such matters, and make their legislature 
as like the omnipotent Parliament of Britain as they 
can. The Canadian Constitution leaves the Dominion 
Parliament unfettered save by the direction (sect. 54) 
that money shall not be appropriated to any purpose 



THE AUSTRALIAN COinIOX^YEALTH 299 

that has not been recommended to the House of Com- 
mons by the Executive, a direction embodying Enghsh 
practice, and now adopted by Australia also. And the 
Australian Constitution contains but one provision 
v^hich recalls the old-fashioned Bill of Rights, viz. that 
v^hich forbids the Commonwealth to * make any law for 
establishing any religion or for imposing any religious 
observance or for prohibiting the free exercise of any 
religion.' The Swiss Constitution, influenced by French 
and American models, is in this respect more archaic, 
for it imposes a series of disabilities on its Legislature 
in the interest of individual freedom (sectt. 39, 49, 54-59). 
This diversity of attitude between the English on the 
one hand and both the Americans and the Swiss on the 
other is a curious instance of the way in which usage and 
tradition mould a nation's mind. Parliament was for so 
long a time the protector of Englishmen against an arbi- 
trary Executive that they did not form the habit of tak- 
inj^' precautions against the abuse of the powers of the 
Legislature ; and their struggles for a fuller freedom 
took the form of making Parliament a more truly popu- 
lar and representative body, not that of restricting its 
authority. 

The point just examined is one which arises in all 
Rigid Constitutions, whether Federal or Unitary. But 
the next point is one with which only Federations are 
concerned ; and it is one in which all the great Federa- 
tions agreee. All have adopted the same method of 
providing both for the predominance of the majority of 
the people considered as one Nation, and for the main- 
tenance of the rights of the States considered as distinct 
communities. The Americans invented this method : 
the Swiss, the Canadians, the Germans, and now the 
Australians, have imitated them. This method is to 
divide the Legislature into two Houses, using one to re- 
present the whole people on the basis of numbers, and 
using the other to represent the several States on the 
basis (except in Germany) of their equality as autono- 



300 TEE AUSTRALIiy COMMOXWEALTH 

mous communities. It was this device that made Fede- 
ration possible in the United States, for the smaller 
States would not have foregone their independence in 
reliance upon any weaker guarantee. 

X. The Legislature. 

The Australian scheme provides (sectt. 7-23) for an 
Upper House or Senate of thirty-six members, six from 
each State, and a House of Representatives (sectt. 24-40) 
of seventy-five members, elected on a basis of popula- 
tion, so that forty-nine members will come from the 
two large States, New South Wales and Victoria, and 
twenty-six from the four small States. Xo Original 
State is ever to have less than five. 

The equal representation of the six Original States is 
always to be maintained, but the number of Senators 
may be increased, and when new States come to be 
formed, the Parliament may allot to them such number 
of Senators as it thinks fit. Senators sit for six years, 
and do not all retire at the same time. These features 
are taken from the Constitution of the United States, 
which, as already observed, has been a model for subse- 
quent Federal Upper Houses. But there are remark- 
able variations in the Australian scheme. 

1. In the United States each newly-created State re- 
ceives as a matter of right its two Senators. In Austra- 
lia the Commonwealth may allot such number as it 
thinks fit. 

2. In the United States one-third of the Senate retires 
every two years. In Australia one-half retires every 
three years. 

3. In the United States the President of the Senate 
is the Vice-President of the United States, chosen by 
the people 1. In Australia, the Senate is to choose its 
own President. 

J I.e. practically by the people, though formally by a body of electors elected 
for that purpose. 



THE AISTRALIAN COMMOyWEALTH 301 

4. In the United States the quorum is one more than 
a half of the total number ; in Australia one-third of the 
total number. 

5. In the United States the Legislatures of the several 
States elect the Senators. In Australia the Senators 
are elected by the people of the State. 

This last point is one of great interest. Tocqueville, 
writing in 1832, attributed (erroneously, as the sequel 
has shown) the excellence of the American Senate to 
the method of election by the State Legislatures ^. Since 
his days the American Senate has declined ; and so far 
from this mode of election having tended to sustain its 
character, the general, though not unanimous, opinion 
of the wise in America deems the Senate to be injured 
by it, and desires a change to the method of election by 
direct popular vote. It was partly because the Austra- 
lian Convention had become aware of this tendency of 
American opinion that they rejected the existing Ameri- 
can plan ; nor is it impossible that the Americans them- 
selves may alter their system, which gives greater oppor- 
tunities for intrigue and the use of money than popular 
election would be likely to afford. In Australia, the 
Senators are in the first instance to be elected by the 
people, each State voting as one electorate, but this 
may be altered (e.g. to a system of district elections) by 
the Parliament of the Commonwealth, or failing its 
action, by the Parliament of a State. It will be interest- 
ing to see what experiments are tried and how they 
work. District voting may give different results from 
a general State vote, and a party for the moment domi- 
nant may choose the plan that best suits it. 

6. In the U^nited States the Senate is an undying body, 
perpetually renewed by fresh elections, never losing 
more than one-third of its members at any one time. 
In Australia the Senate may be dissolved in case a 
deadlock should arise between it and the House of 
Representatives. 

' See as to this, Essay VI, p. 336 and p. 352. 



302 THE AVSTRALIAX COAIilOXWEALTH 

The Senate is the sheet-anchor of the four small 
States. Commanding a majority in it, they have con- 
sented to acquiesce in the great preponderance which 
their two larger neighbours possess in the House of 
Representatives. The numbers of the latter House are 
to be always as nearly as practicable double those of the 
Senate, a point whose importance will presently appear. 

The House is to continue for three years (subject of 
course to dissokition), a term intermediate, though in- 
clining in the democratic direction, between the two 
years of the American Congress and the seven (practi- 
cally six) years of the British House of Commons. The 
Canadian term is five years. Until the Commonwealth 
Parliament otherwise provides, the electoral suffrage 
is to be (as in the United States) the suffrage prescribed 
by State law for the election of members of the more 
numerous State House, and it is expressly provided, 
doubtless with a view to the fact that women's suffrage 
already exists in two colonies, that no law shall prevent 
a State voter from voting at Commonwealth elections. 
So far from securing, as does the United States Consti- 
tution, that no person shall be excluded on the ground 
of race from the suffrage i, Australia has expressly pro- 
vided that persons belonging to a particular race may 
be excluded, for she declares (sect. 25) that in such case 
the excluded race is not to be reckoned among the popu- 
lation of the State for the purposes of an allotment 
of representatives. Plural voting is forbidden. The 
quorum, of members is a mean between the inconve- 
niently large quorum (one-half) of the American, and the 
very small one (forty) of the British House. The seat of 
any Senator or member of the House becomes ipso facto 
vacant if he fails (without permission) to attend any 
session for two continuous months. Xo person having 
any pecuniary interest in any agreement with the public 
service (except as member of an incorporated company 
of at least twenty-five persons), or holding any office of 

1 See Amendment XV to the Constitution. 



THE AUSTRALIAN COMMONWEALTH 303 

profit under the Crown, can sit in either House, unless 
he be a Minister either of the Commonwealth or of a 
State. The exception is noteworthy, not only because 
it is framed with a view to the establishment of Cabinet 
Government, but also because it implies that a man may, 
contrary to American and Canadian usage, be at the 
same time both an executive official of a State and also 
a member of the Federal Legislature. It would appear 
that women are eligible to membership of either House. 
Every Senator and Representative is to receive a salary, 
fixed for the present at £400 ($2,000) a year. 

XI. The Executive. 

The Executive is to consist of the Governor-General 
and the Ministers. To the great convenience of the 
Australian people, the head of the Executive does not 
need to be elected either by popular vote (as in the 
United States) or by the Chambers, as in France and 
Switzerland. He is nominated by the British Crown, 
and holds office so long as the Crown pleases, receiving 
a salary fixed, for the present, at iio,ooo ($50,000) a 
year (exactly the salary of the American President). He 
has an Executive Council, modelled on the British Privy 
Council (though the name Privy Council is not used 
as it is in the Canadian Constitution), and from it he 
chooses a number of Ministers (fixed for the present at 
seven) who are to administer the several departments 
of the public service. They must be members of one or 
other House of Parliament — a remarkable provision, for 
though this is a British practice, that practice has never 
been embodied in any positive rule. As the Governor- 
General is only a constitutional figure-head, these Mini- 
sters will in fact constitute the ruling executive of the 
Commonwealth. 



304 THE AUSTFALIAX COMIIOXWEALTH 

XII. The Judiciary. 

The Judiciary is to consist in the first instance of a 
Federal High Court (containing a Chief Justice and at 
least two other judges) capable of exercising both origi- 
nal jurisdiction in certain sets of cases, and also appel- 
late jurisdiction not only from single Federal Judges and 
inferior Federal Courts, but also from the Supreme 
Courts of the States. Power is taken both to establish 
lower Federal Courts and to invest State Courts with 
federal jurisdiction. But besides this Judiciary proper, 
there is created a second Court for dealing with cases 
relating to trade and commerce, under the name of the 
Inter-State Commission (sect. loi). This remarkable 
and very important institution has doubtless been sug- 
gested by the United States Inter-State Commerce Com- 
mission created by Congress some eighteen years ago 
in order to deal with railway and water traffic between 
the States. Its functions will be half-administrative, 
half-judicial, and in questions of pure law an appeal 
will lie from it to the High Court, while a guarantee 
for its independence is found in the clause which de- 
clares that its members shall not be removed during 
their seven years' term of office. All Federal Judges 
are to be appointed by the Governor-General, that is 
to say, by the Executive ]\Iinistry. All trials (on in- 
dictment) for any ofifence against the laws of the Com- 
monwealth shall be by jury, and held in the State where 
the alleged ofifence was committed. The jtidicial estab- 
lishments of the States remain unafifected, and the 
judges thereof will continue to be appointed by the 
State Executives. 

In determining the functions of the High Court there 
arose an important question which seemed for a moment 
to threaten the whole scheme of Federation. The draft 
Constitution which the Convention had prepared and 
which the people had approved by their vote provided 
that questions arising on the interpretation of the Con- 



THE AUSTRALIAN COMMONWEALTH 305 

stitution as to the respective limits of the powers of the 
Commonwealth and of the States, or as to the respec- 
tive limits of the constitutional powers of any two or 
more States, should be adjudicated upon by the High 
Court of the Commonwealth, and that no appeal should 
lie from its decision to the Queen in Council {i.e. to the 
Judicial Committee of the Privy Covmcil in England, 
which is the Supreme Court of Appeal from the British 
Colonies and India), * unless the public interest of some 
part of Her Majesty's dominions, other than the Com- 
monwealth or a State, are involved.' When the draft 
reached England to be embodied in a Bill, the British 
Government took exception to this provision as tending 
to weaken the tie between the mother country and the 
colonies. There were many in England who thought 
that it was not in the interest of Australia herself that 
she should lose, in questions which might involve poli- 
tical feeling and be complicated with party issues, the 
benefit of having a determination of such questions by 
an authority absolutely impartial and unconnected with 
her domestic interests and passions. How much better 
(they argued) would it have been for the United States 
at some critical moments could they have had constitu- 
tional disputes adjudicated on by a tribunal above all 
suspicion of sectional or party bias, since it would have 
represented the pure essence of legal wisdom, an unim- 
peachable devotion to legal truth ! 

To this the Australians replied that the experience 
of the United States had shown that in constitutional 
questions it was sometimes right and necessary to have 
regard to the actual conditions and needs of the nation ; 
that constitutional questions were in so far political that 
where legal considerations were nearly balanced, the 
view ought to be preferred which an enlightened regard 
for the welfare of the nation suggested ; that a Court 
sitting in England and knowing little of Australia would 
be unable to appreciate all the bearings of a constitu- 
tional question, and might, in taking a purely technical 



306 THE AUSTRALIAX COMMONWEALTH 

and possibly too literal a view of the Constitution, give 
to the Constitution a rigidity which would check its 
legitimate expansion and aggravate internal strife. 
Australia must — so they pursued — be mistress of her 
own destinies, and as it is she that had framed and pro- 
cured the enactment of this Constitution, so by her 
ought the responsibility to be borne of working it on 
its judicial as well as its executive and legislative side. 
Xot only was this better for Australia herself, but it 
would be more conducive to the maintenance of the 
connexion between the Commonwealth and the mother 
country. 

After some wavering, the British Government, per- 
ceiving the risk of offending Australian sentiment, gave 
way. They dropped in Committee of the House of Com- 
mons the alteration which they had introduced into 
the Australian draft, substituting for it an amendment 
which, while slightly varying the original terms of the 
draft, practically conceded the point for which the Au- 
stralian Delegates, sent to England to assist in passing 
the measure, had contended. The Act as passed pro- 
vides that no appeal shall lie to the Crown in Council 
upon the constitutional questions above-mentioned un- 
less the High Court itself shall, being satisfied that the 
question is one which ought to be determined by the 
Privy Council, certify to that effect. In all other such 
cases its judgement will be final. 

Appeals to the Privy Council in questions other than 
constitutional will continue to lie from the Supreme 
Courts of the States (with the alternative of an appeal 
to the High Court) and from the High Court itself, when 
special leave is given by the Privy Council. The Com- 
monwealth Parliament may limit the matters in which 
such leave may be asked, but the laws imposing such 
limitations are to be reserved for the pleasure of the 
Crown. 

The scheme of judicature above outlined follows in 
the main the model contained in the American Constir 



THE AUSTRALIAN COMMONWEALTH 307. 

tution. It does not draw the line between State and 
Federal matters and courts so sharply, for appeals are 
to lie from State Courts in all matters alike, and State 
Courts may receive jurisdiction in Federal matters. On 
the other hand, it is more conformable to principle than 
either the Canadian plan, which provides no Federal 
Courts save the Supreme Court and gives the appoint- 
ment of all judges alike to the Dominion Government, 
or the Swiss plan, which refers questions of conflict be- 
tween the Nation and the Cantons, or as to the constitu- 
tionality of Federal laws, not to the Judiciary at all, but 
to the Federal Legislature. Broadly speaking, the Au- 
stralian High Court will have to fill such a place and dis- 
charge such functions as have been filled and discharged 
in America by that exalted tribunal which Chief Justice 
John Marshall and other great legal luminaries have 
made illustrious. In working out the provisions of the 
Constitution by an expansive interpretation, cautious 
but large-minded, it may render to Australia services 
not unworthy to be compared with those which America 
has gratefully recognized. 

XIII. Working of the Frame of Government. 
The Cabinet. 

Now let us see how this Frame of Government, which 
I have briefly outlined in its salient features, is intended 
to work. 

Its essence lies in a matter which is not indicated by 
any express provision, the dependence of the Executive 
upon the Legislature. Herein it differs fundamentally 
from the American and Swiss systems. It reproduces 
the English system of what is called Cabinet or Respon- 
sible Government ; that is to say, a Government in which 
the Executive instead of being, as in America, an inde- 
pendent authority, directly created by the people and 
amenable to the people only, is created by and respon- 
sible to the Legislature. x\s and when the British colo- 



^08 TEE AU8TBALIAN COMMONWEALTE 

nies respectively obtained self-governing institutions, 
each of them adopted this scheme, since it was the one 
familiar to them at home : and to it they seem all de- 
termined to adhere. 

Its distinctive features are these. 

The nominal head of the Executive, in Britain the 
Crown, in Australia the Governor-General as represent- 
ing the Crown, is permanent, and is not responsible to 
the Legislature, because he acts not on his own views, 
but upon the advice of his Ministers. 

The Ministers are responsible to the Legislature 
which virtually chooses them, and they depend upon its 
confidence for their continuance in office. 

The Ministers are however not wholly at the mercy 
of the Legislature, because they may dissolve it, that is 
to say, may appeal to the people, in the hope that the 
people will elect a new Legislature which will support 
them. This kind of government accordingly rests on 
a balance of three authorities, the Executive, the Legis- 
lature, and the People, the people being a sort of arbiter 
between Ministry and Parliament. As the Ministry can 
at any moment appeal to the people, the threat of ap- 
pealing puts pressure upon the Parliament, and keeps a 
majority cohesive. In the existence of this power of 
sudden dissolution there lies a marked difiference from 
the American scheme, which some one has called As- 
tronomical, because the four years' term of office of 
the Executive and the two years' term of the Legis- 
lature are both fixed by the earth's course round the 
sun. 

I have spoken of the Legislature as the authority to 
which the Ministry is responsible. But what is the 
Legislature? In England, although Parliament con- 
sists of two Houses, the Minister-making power resides 
solely in the House of Commons. Being elective, the 
House of Commons has behind it the moral weight of 
the people and the prestige of many victories. Being 
the holder of the purse, it has the legal machinery for 



THE AUSTRALIAN COMMONWEALTH 309 

giving effect to its will, since without supplies admini- 
stration cannot be carried on. Accordingly, though the 
existence of two often discordant Houses may arrest or 
modify legislation in Britain, it does not affect the ex- 
ecutive conduct of affairs, save on the rare occasions 
when immediate legislation is deemed indispensable by 
the Executive. The same remark applies to Canada. 
There also one finds two Houses, but the Senate, being 
a nominated and not a representative body, holds an 
entirely secondary place. The Ministry may disregard 
a vote of want of confidence passed by it, just as in Eng- 
land they disregard an adverse vote of the House of 
Lords. In Australia, however, things will be quite dif- 
ferent. There the Senate has been constituted as a re- 
presentative body, elected by the peoples of the States ; 
and as the protector of the rights and interests of the 
States it holds functions of the highest importance. Its 
powers (save in one point to be presently mentioned) 
are the same as those of the House. In whom then does 
the power of making and unmaking ministries reside? 
Wherever one finds two assemblies, one finds them na- 
turally tending to differ ; and this will be particularly 
likely to occur where, as in Australia, they are con- 
structed by different modes of election. Suppose a vote 
of no confidence in a particular Ministry is carried in 
one House and followed by a vote of confidence passed 
in the other? Is the Ministry to resign because one 
House will not support it? It retains the confidence of 
the other ; and if it does resign, and a new Ministry 
comes in, the House which supported it may pass a 
vote of no confidence in those who have succeeded it. 

The problem is one which cannot arise either under 
the English or under the American system. Not under 
the English, because the two Houses are not co-ordi- 
nate, the House of Commons being much the stronger. 
Not under the American, because, although the Houses 
are co-ordinate, neither House has the power of displac- 
ing the President or his Ministers. It is therefore a new 



310 THE AUSTRALIAN COMMONWEALTH 

problem, and one which directly results from the attempt 
to combine features of both schemes, the Cabinet system 
of England and the co-ordinate Senate, strong be- 
cause it represents the States, which a Federal system 
prescribes. 

XIV. Provisions against Deadlocks. 

This, however, is only one, though perhaps the most 
acute, of the difficulties that arise from the existence of 
two co-ordinate Houses. Their dififerences upon ques- 
tions of legislation are always liable to produce dead- 
locks. These annoying phenomena occur in England, 
though there the House of Lords, except upon Irish 
questions, usually gives way (even without a dissolution 
of Parliament), because it is afraid of incensing the peo- 
ple and thereby bringing about its own destruction if 
it continues to resist the national will. In Irish ques- 
tions the Upper House has been apt to assume that the 
people of England and Scotland are not sufficiently in- 
terested to resent very keenly its difference from the 
Commons. In the United States there is no remedy for 
such deadlocks. They have to be endured, at whatever 
cost. The resistance of the Senate to various plans sug- 
gested by the House for dealing with the slavery ques- 
tion may be reckoned among the causes which brought 
on the War of Secession. The Australian colonies them- 
selves have had frequent experience of deadlocks in 
matters of legislation between the two Houses, for in 
every colony there have been two Houses, though in 
every colony it is the more popular House which has 
controlled the Executive. 

The difficulties I have indicated were fully before the 
minds of the statesmen who sat in the two Conventions. 
An ingenious device has been contrived for dealing with 
them (sect. 57). When the House passes a law and the 
Senate disagrees, the House may pass it again after 
three months, and if the Senate still disagrees, the Gov- 



THE AU8TEALIAN COMMONWEALTH 311 

ernor-General may thereupon dissolve both House and 
Senate together, unless the Parliament is within six 
months of its natural end by effluxion of time. If after 
such dissolution the new House again passes the mea- 
sure, and the Senate once more disagrees, the Governor 
may convene a joint sitting of both Houses. If the pro- 
posed law is then passed by an absolute majority of the 
whole Parliament so convened in joint sitting, it shall 
be taken to have been duly passed by both Houses. 

This method involves the expenditure of a good deal 
of time and the worry of a double general election, one 
for the House and one for the Senate. But it may prove 
to be the best method of solving a problem which neither 
Britain nor the United States has yet attempted to solve, 
and which certainly needs solution. The reader who re- 
members that the numbers of the House have been fixed 
to be always double those of the Senate, will now see 
how necessary such a provision was in order to secure 
that in this final trial of strength between Senate and 
House the principle of State rights and the principle of 
population shall each have its due recognition. Should 
these two principles come into collision, should, for in- 
stance, all the members from the four small States be of 
one mind and all the members from the two large States 
of another mind, the principle of population will prevail, 
for in the two Houses sitting together, the large States 
will have sixty-one votes (twelve senators and forty-nine 
representatives), whereas the small States will have only 
fifty (twenty-four senators and twenty-six representa- 
tives). Such a conjuncture may however never arise. 

XV. Relations of the Two Houses. 

The question remains which of the two Houses will 
hold the place of the British House of Commons as de- 
termining the tenure of office by Ministries. Upon this 
question light may be cast by the provisions with regard 
to money bills. The Constitution enacts (sect. 53) that 



312 THE AUSTRALIAN COMIIOXWEALTH 

all bills appropriating revenue or imposing taxation 
must originate in the House, and that the Senate may 
not amend taxing bills, or those ' appropriating money 
for the ordinary annual services of the Government,' 
though it may return such bills to the House suggesting 
certain amendments in them. The Senate may however 
reject such bills. As this scheme, which somewhat re- 
sembles that of the American Constitution i, itself sug- 
gested by the practice of England, seems to throw upon 
the House the primary function of providing money for 
the public service, and thus the primary control of the 
national exchequer, it would seem that Ministers, un- 
able without money to carry on that service, must stand 
or fall by a vote of the House and not by a vote of the 
Senate. Yet the Senate, though it cannot take the first 
steps for granting money, can withhold money; and if 
it does so in order to get rid of a ]\Iinistry it dislikes, 
nothing short of the deadlock provision above described 
can be invoked. Nor can the expedient of mixing up a 
number of dififerent taxing provisions in one Bill, or 
inserting other matter in appropriation Bills ('tacking'), 
be resorted to, for these are expressly prohibited by the 
Constitution (sectt. 54, 55). Possibly in practice the 
Houses will frequently agree to let the accustomed ser- 
vices of the year be provided for without much contro- 
versy, and will reserve their serious conflicts for new 
proposals regarding taxation or appropriation. 

Australians evidently expect that the usage hitherto 
prevailing in all the Colonies of letting the Ministry be 
installed or ejected by the larger House will be fol- 
lowed. Nevertheless the relations of the Commonwealth 
Houses are so novel and peculiar, that the experience 
of the new Government in working them out will deserve 
to be watched with the closest attention by all students 
of politics. Englishmen in particular have good reason 

1 In the U. S. A., however, the Senate may and does amend both revenue-rais- 
ing and appropriation bills, and indeed frequently prevails against the House in 
the quarrels which arise over these matters. 

38 



THE AUSTRALIAN COMMONWEALTH 313 

for doing so, because England, when she has substi- 
tuted a representative Second Chamber for her present 
theoretically indefensible House of Lords, will have to 
devise some means for avoiding or solving deadlocks be- 
tween such a Chamber and the House of Commons. 

Some high Australian avtthorities have appeared to 
doubt whether two co-ordinate Houses can be made to 
work along with Cabinet Government. They observe 
that although there may be sometimes a willingness to 
make compromises for the sake of the public service, 
there is also in all governments, and certainly not least 
in those of the United States and the British Colonies, 
a tendency to press every legal right to its furthest limit, 
even if the machine should be stopped thereby. Were 
such stoppages to become frequent, Australia might, 
they think, be driven to amend her Constitution by so 
far disjoining the Executive from the Legislature as to 
give it something of the permanence it enjoys in Amer- 
ica and Switzerland^. 

The relations of the Senate to the House may largely 
depend on factors still undetermined. One of these is 
the growth of population. Should the small Colonies 
grow rapidly, their representation in the House would 
before long be fairly proportionate to that which they 
enjoy in the Senate, so that the balance of parties might, 
so far as the size of States is concerned, tend to be nearly 
the same in both Houses. Another is the character of 
the controversies which will arise. These may not be 
such as to set the small States against the large ones, 
and the three party organizations, which are already 
strong, though they possess no such Machine System as 
America enjoys, may find their support pretty equally in 
all or most of the States, so that the balance of parties 

1 It was suggested in the Convention by Mr. Playford (then Prime IVIinister of 
South Australia) that the two Houses sitting together might appoint the Executive 
Ministry, but this plan deviated too far from British Colonial practice to find ac- 
ceptance. A similar suggestion was made by Sir John Cockburn in the Sydney 
Convention in iSgi. See his speech in an interesting volume published by him en- 
titled Australian Federation (p. 139). 



314 THE AUSTRALIAN C02IM0XWEALTH 

may in practice be found to differ but little in the Senate 
from what it is in the House. Thus these particular 
wheels or shafts of the constitutional machine, which are 
deemed less able than others to bear a severe strain, 
may not for a long while to come have any severe strain 
thrown upon them. 

Another thing which may affect the relations of the 
two Houses is the comparative attractions which each 
will have for high political capacity. In the United 
States the Senate became, within thirty years from the 
establishment of the Constitution, an assembly much 
stronger, through the eminence of its members, than 
was the House of Representatives. As its term of mem- 
bership was longer (six years against two years), and 
as it had certain quasi-executive functions in connexion 
with foreign relations and appointments, men of ability 
preferred it to the House, and the House constantly 
saw its best talent drawn off to its rival. The Senate 
has to-day no such intellectual ascendency as it had 
then, but capable men still migrate to it when they can 
from the House of Representatives. If the House estab- 
lishes in Australia, as it will apparently do, its sole right 
to make and unmake Ministries, it will be the more 
tempting field for ambition : yet something will depend 
upon the amount of genius and character which the 
Senate attracts, for the presence of these in abundant 
measure will give it weight with the nation. 

It has been suggested in Australia that the Senate 
with its thirty-six members is too small. The Senate 
of the United States however began with twenty-six; 
and it has been a great advantage to that body that its 
original numbers were small, for traditions more digni- 
fied than those of the tumultuous House were formed, 
and a somewhat stronger sense of personal responsibility 
was developed just because the individual was not lost 
in a crowd. 



THE AUSTRALIAN COMMONWEALTH 315 

XVI. Miscellaneous Provisions. 

Questions of trade and finance fill a chapter of the 
Constitution (sectt. 81-105) ; and it was indeed these 
questions, next to the issue between the large and the 
small States, that gave most trouble to those who 
framed the instrument. It is provided that the collec- 
tion and control of all duties of customs and excise 
shall pass to the Commonwealth, but that not more 
than one-fourth thereof shall, for ten years at least, be 
retained by the Commonwealth, the other three-fourths 
being paid^over to the several States, or applied to pay- 
ment of the interest on their respective debts, should 
these debts be assumed by the Commonwealth. This 
arrangement was deemed needful to supply the States 
with funds for defraying their administrative expenses 
and the interest on their debts, seeing that the chief part 
of their revenue arose from customs and excise, the 
five which prepared the Constitution, except New South 
Wales, having adopted a protective policy. Bounties 
may be given either by the Commonwealth, or by the 
States with its consent. There are provisions regard- 
ing the collection of the customs, the control of railways 
and settlement of railway rates, the use of rivers for ir- 
rigation and water storage, and the State debts, but as 
these are largely temporary, and have little special in- 
terest for the student of constitutions, important as they 
are to Australian industries, I mention them only to 
show how elaborately the scheme of union has been 
worked out, and on how many perplexing topics, settled 
provisionally by the Constitution, the Commonwealth 
Parliament will have to legislate. 

The question of the spot where the capital should be 
placed gave rise, as had happened in the United States 
and in Canada, to some controversy. It was adjusted 
by providing that the seat of Federal government should 
be in the colony of New South Wales, but at least 100 
miles from Sydney, Here an area is to be set apart 



316 TEE AUSTRALIAN COMMONWEALTH 

of not less than lOO square miles, which shall be under 
the jurisdiction of the Commonwealth, as the District 
of Columbia is under the authority of the National Gov- 
ernment in the United States : and here a stately city will 
dovibtless in time spring up. 

Power is taken to admit new States, whether formed 
out of existing States or not, upon any terms and condi- 
tions (e.g. as to number of Senators) which the Parlia- 
ment may fix, but if the new State is formed out of an 
old one, only with the latter's consent. The Parliament 
has also full power to accept and provide for the ad- 
ministration of any territory transferred tp it by the 
Crown, so that no constitutional questions can arise re- 
sembling that which has occupied American lawyers 
since the annexation of Puerto Rico. 

XVII. Amendment of the Constitution. 

Last of all we come to the mode of amending the Con- 
stitution, a mode easier to apply than that prescribed for 
the United States, but showing the influence to some 
extent of the American though more largely of the Swiss 
model in its reference to the popular vote. 

Every law proposing to alter the Constitution must 
be passed by an absolute majority of each House, and 
thereupon (after two but before six months) be sub- 
mitted to the voters of every State. If in a majority of 
States a majority of the electors voting approve the pro- 
posal, and if these State majorities constitute a majority 
of all the electors voting over the whole Commonwealth, 
the amendment is passed, and is then to be presented to 
the Crown for assent. Should the two Houses differ, 
one passing the proposed law and the other rejecting 
it (or passing it with an amendment which the first- 
mentioned House rejects), the House which approves 
the proposal may again pass it, and if the dissenting 
House again dissents, the amendment may be submitted 
to the people as if both Houses had passed it. The de- 



THE AUSTRALIAN COMMONWEALTH 317 

cision of the people is final. To meet the fact that the 
sufifrage is not in all the States confined to men, it is 
further provided that, in any State wherein all adults are 
entitled to vote, only one half of the vote shall be 
counted ^. 

Thus the requirements for the passing of an Amend- 
ment are : — 

1. Absolute majority in each House of Parliament, 
or else absolute majority in one House given twice, the 
second time after three months' interval, phis submission 
on both occasions to the other House. 

2. Approval of the people in a majority of States (i.e. 
at present in four States at least). 

3. Approval of a majority of the people voting over 
the whole Commonwealth. 

The American Federal Constitution requires a two- 
thirds' majority in each House of Congress and a three- 
fourths' majority of States, or else the proposal of a 
Convention by two-thirds of the States and a three- 
fourths' majority of States approving what the Conven- 
tion has settled, conditions extremely difficult to se- 
cure. The Swiss system permits the Constitution to be 
amended by the same process as is applied to the passing 
of laws, plus a popular vote which results in a majority 
of Cantons and in a majority of the people voting over 
the whole Confederation. 

XVIII. Relations of the Australian Commonwealth 
TO THE Crown. 

It has not seemed necessary to set forth the relations 
of the Commonwealth to the British Crown, because 
these relations are substantially those which have here- 
tofore existed between the Crown and each of the self- 

1 But ' no alteration diminishing the proportionate representation of any State 
in either House of the Parliament, or the minimum number of representatives of a 
State in the House of Representatives, or increasing, diminishing or otherwise 
altering the limits of the State, shall become law unless the majority of the electors 
voting in that State approve the proposed law ' (sect. 128). 



318 THE AUSTRALIAN COMMOXWEALTH 

governing colonies now united in the Federal Common- 
wealth. The chief difference is that the Commonwealth 
Parliament receives certain powers (as to extra-terri- 
torial fisheries and relations with the islands of the 
Pacific) which were previously exerciseable only by the 
(now extinct) Federal Council of Australasia (mentioned 
above), that it has a general power to legislate on ' ex- 
ternal affairs ' (a somewhat vague term, sect. 51, xxix), 
and that it may ' exercise within the Commonwealth, at 
the request or with the concurrence of the Parliaments 
of all the States directly concerned, any power which 
can now be exercised only by the Parliament of the 
United Kingdom or by the Federal Council of Austra- 
lasia ' (sect. 51, xxxviii). Apart from these provisions, 
which may give rise to some delicate questions, the prin- 
ciples and practice which have guided the action of the 
Home Government and of the Colonial Governors will 
apparentl}' be preserved. Though the Imperial Parlia- 
ment has an unquestioned right to legislate for every 
part of the British dominions so as to override all local 
legislation, it does not now exercise this power except for 
a few purposes of utility common to all, or many, British 
possessions, such as for the regulation of merchant- 
shipping or copyright, and when it does so, it secures the 
assent of the self-governing Colonies. So again, though 
the Crown has the legal right to withhold consent from 
Colonial Statutes, this right is rarely exerted, and then 
only in respect of some general imperial interest which 
it is supposed that the statute in question may preju- 
dicially affect, i.e. the Crown's right is not exerted in 
the interest of any class of persons in the Colony or in 
pursuance of any particular view entertained either by 
the Governor there or by the j\Iinistry at home. The new 
Australian Constitution provides (sectt. 58-60) that 
when a measure passed by the Parliament is presented 
to the Governor-General, he may either assent to it in 
the Queen's name (but subject to a power to the Queen 
to disallow the same within one year) or he may withhold 



THE AUSTRALIAN COMMONWEALTH 319 

assent ; or he may reserve it for the Queen's pleasure, 
in which last case it shall not take effect unless he an- 
nounces within two years that the Queen has assented 
to it. This right of veto, though it looks on paper larger 
than that which belongs to the President of the United 
States, seeing that the President's veto can be overridden 
by a two-thirds' majority in each House of Congress, 
is in reality far more limited, and will constitute no check 
(except where imperial interests may be affected) upon 
the practically sovereign power of the Commonwealth 
Parliament. 

XIX. Comparison with the Constitutions of 
THE United States and Canada. 

Before I make some general reflections on the cha- 
racter of this Australian Constitution, it is worth while 
to note summarily the principal points in which it differs 
from the two other Federal Constitutions which it most 
resembles. 

The provisions which it has borrowed from the 
American Constitution have been already adverted to. 
It differs from that Constitution in the following (among 
other) respects : — 

1. It is a longer instrument, going into much fuller 
detail on many topics. 

2. It leaves less power to the States and gives more 
power to the Commonwealth ; and it enables the Com- 
monwealth Parliament to legislate for a State upon the 
State's request, a thing which lies quite outside the func- 
tions of Congress. 

3. It does not establish a complete system of Federal 
Courts covering the whole area of the Commonwealth, 
but allows State Courts to be invested with Federal 
jurisdiction. 

4. It makes the Federal High Court a Court of ap- 
peal from State Courts, whereas in the United States 
each State Supreme Court is final in its proper sphere. 



320 THE AUSTJiALIAX COMMOXWEALTH 

5. It contains hardly any restrictions, in the nature of 
a ' Bill of Rights,' upon the power of the Federal Legisla- 
ture over the individual citizen. 

6. Instead of disjoining Legislature and Executive, 
it unites them closely b}^ the system of Responsible or 
Cabinet Government, and so far from excluding every 
official from Congress, it makes a seat in Parhament a 
condition of ^Ministerial office. 

7. It vests the choice of the Head of the Executive, 
not in the people, but in an external authority, the 
British Crown. To be sure, this Head is nominal and 
not responsible either to the people or to the legis- 
lature. 

8. It vests the election of Senators in the people, not 
in State Legislatures, gives the Senate no power of 
amending but only of suggesting amendments in money 
bills, makes the Senate dissoluble in case of a deadlock 
between it and the House, and contemplates the possi- 
bility that new States may have a smaller representa- 
tion in the Senate than original States. 

9. It gives to the Executive no such veto on legis- 
lation as the President has in the L'nited States. I have 
already explained that the veto of the Governor-General 
and the Crown is a different thing, and rarely employed. 

10. It makes the amendment of the Constitution a 
much less tedious and difficult process. 

Thus it may be said that, as compared with the Ameri- 
can Constitution, it vests more power in the National 
Government as against the State Governments, and that, 
as between the various departments of the National 
Government itself, it concentrates power more fully in 
the hands of the Legislature and imposes fewer restric- 
tions upon its action. 

The Constitution of Canada seems at first sight nearer 
to that of Australia than does the American. It has a 
Alonarch, represented by a Governor-General, for the 
head of its Executive. It contemplates a number of 
States small when compared with the forty-five of the 



THE AUSTRALIAN COMMONWEALTH 321 

American Union. It has adopted the British system of 
Cabinet or responsible Government. 

But the differences are really so considerable as to 
place Australia's scheme as far from that of her colonial 
sister as from the American. Among them are the 
following : — 

1. The Canadian Constitution prescribes the Constitu- 
tions of the several Provinces, though it permits the 
Provincial legislatures to alter them (subject to a Federal 
veto). The Australian assumes its State Constitutions 
as existing, and makes no change in them, except so 
far as the Federation controls or supersedes them. 
Hence the antecedent power of changing them re- 
mains, so far as they are not affected by the Fedefal 
Constitution. 

2. Australia leaves to the States all residuary powers 
(i.e. powers not expressly granted). Canada withholds 
them from the Provinces and vests them in the 
Dominion. 

3. Australia leaves the State Governors to be ap- 
pointed, as now, by the Home Government, apart from 
Federal interference. Canada gives the appointment of 
them to the Federal Ministry. And whereas in Canada 
a Provincial Governor cannot communicate directly with 
home but only with the Governor-General, in Australia 
the State Governor and his Ministers are in direct touch 
with the British Government in London. 

4. Australia gives to the Federal Government no right 
whatever to interfere with State Statutes. Canada in- 
vests the Dominion Government with a veto on Pro- 
vincial legislation by placing the Governor-General as 
regards such legislation in the place which the Queen 
holds as regards Dominion legislation. 

5. Australia distinguishes Federal from State juris- 
diction, taking power to establish Federal Courts other 
than her High Court, and to invest State Courts with 
Federal jurisdiction. Canada has no special Federal 
Courts other than the Supreme Court of the Dominion. 



322 THE AUSTRALIAN COMMONWEALTH 

6. Australia makes her Senate an elective assembly. 
In Canada the Senate is nominated by the Dominion 
Government, and is therefore a weak body, quite unfit 
to try conclusions with the House which has the people 
behind it. 

7. Australia provides a method whereby the Common- 
wealth may amend its Constitution. Canada has no such 
method, and thereby leaves amendment to the Imperial 
Parliament of the United Kingdom. 

This comparison shows that the Australian scheme 
of Federal Government stands intermediate between 
that of the United States and that of Canada. In the 
United States, the Federal Government has less power 
as against the States than in Australia. In Canada, the 
Federal Government has more power, or at least a wider 
range of action. In other words, the Australian sys- 
tem approaches nearer, in point of form, to a Unitary 
Government than does the United States, but not so 
near as does Canada. I am speaking merely of form, 
that is, of the institutions as they stand on paper, for it 
does not necessarily follow that the spirit in which in- 
stitutions are worked will precisely correspond to their 
form. The old Romano-Germanic Empire, for instance 
(1638-1806), was less unitary in practice than would have 
been collected from its form ; the new German Empire 
(since 1871) is more unitary in spirit and working than 
its form would necessarily convey. 

XX. General Observations on the Constitution. 

Technically regarded, the Constitution is an excellent 
piece of work. Its arrangement is logical. Its language 
is for the most part clear and precise. The occasional, 
and perhaps regrettable, vagueness of some expressions 
appears due, not to any carelessness of the draftsmen, 
but to the nature of the subject-matter. The cumbrous- 
ness of the provisions regarding customs, duties, and 
the control of railways is the almost inevitable result of 



THE AUSTRALIAN COMMONWEALTH 323 

an effort to meet the claims and appease the apprehen- 
sions of neighbouring communities with interests that 
have been deemed opposed. Although it is much longer, 
as well as less terse, than the Constitution of the United 
States, going into fuller detail, and with more of the 
flavour of an English statute about it, it nevertheless, 
like that Constitution, leaves much to be subsequently 
filled up by the action of the legislature. A very large 
field of legislation remains common to the States and 
the Commonwealth Parliament; and though statutes 
passed by the latter will of course override or supersede 
those which may have been passed by the former, it 
may be many years before the higher Parliament finds 
leisure to cultivate all the ground whichjies open before 
it. A further range of activity for that Parliament may 
disclose itself if the State legislatures should exert the 
power they possess of asking the Commonwealth to take 
over part of their work. And apart from both these 
lines of legislative action, the Parliament will find a very 
large nuniber of matters which the Constitution has ex- 
pressl} directed it to settle by statutes. Till such statutes 
have been enacted, many points material to the working 
of the system will remain undetermined. 

In two points the experience of the United States has 
been, consciously or unconsciously, turned to account. 
The complaint has often been made in America that the 
Constitution contains no recognition of the Supreme 
Being. The Australians have introduced such a recog- 
nition in the preamble of the Imperial Act establishing 
the Constitution, which runs as follows : ' Whereas the 
people of New South Wales, Victoria, South Australia, 
Queensland, and Tasmania, humbly relying on the bless- 
ing of Almighty God, have agreed to unite in one in- 
dissoluble Federal Commonwealth under the Crown of 
the United Kingdom,' &c. And they have also solemnly 
enounced in the same preamble that indissolubility of 
their union which the Americans did not enounce in 
1788, and the absence of which from the instrument gave 



324 THE AUSTRALIAN COMMONWEALTH 

rise to endless argumentation on the part of those 
who maintained the right of a State to retire from the 
Federation. 

The perfection of any Federal system may be tested 
by the degree of thoroughness with which the Federal 
principle is worked out in its application, not only to 
the legislative, but also to the executive and judicial 
branches of government. In this respect the Australian 
scheme is less perfect than the American; for the Com- 
monwealth has received power to legislate, no doubt at 
the request of the State, on purely State matters, to 
return to the States part of the revenue it collects, and 
to assume the pecuniary liabilities of the States. There 
is also, as already noted, no such effort as in America 
to secure that questions of State law shall be determined 
solely by State Courts, for such cases may be appealed 
from State Courts to the Federal High Court. Thus 
the Nation looms large over the whole instrument, 
overshadowing the States. There are indeed many pro- 
visions for safeguarding the interests of the States, yet 
these are not so much recognitions of States' rights as 
stipulations made to secure material advantages, indus- 
trial or commercial or financial. An explanation of this 
remarkable feature of the scheme may be found in the 
phenomena of Australian as compared with those of 
American history. The thirteen States which united in 
1788-9 had each of them a long history. The two oldest 
dated back to the beginning of the seventeenth century. 
The youngest had nearly sixty years of political life 
behind it. All were animated by a strong sentiment 
of local independence, and by a passion for liberty which 
had become associated with local independence. Their 
notions of a Unitary Government were formed from 
England, whose monarch they had latterly learned to 
hate as their oppressor. Hence their love for their 
States was largely sentimental. Their minds were filled, 
not by the mere sense of what they gained from their 
States as business men, but by the loyalty they bore to 



THE AUSTRALIAN COMMONWEALTH 325 

their States as protectors of their civic rights and em- 
bodiments of their historical traditions. 

Very different were the feeUngs of the Australians. 
The oldest colony dated back scarcely more than a hun- 
dred years, and had enjoyed responsible government for 
less than fifty. Proud as each colony was of its progress, 
there had not been time for those political traditions to 
be formed in which the love of local independence roots 
itself. Neither were there between the several colonies 
such differences of origin or of usages and ways of life 
as separated the New Englanders from the men of Vir- 
ginia and the Carolinas, for the Australians had emi- 
grated so recently from Britain that no local types had 
yet been formed. Still less was there that aversion to a 
Unitary system of government which the strife with Eng- 
land had evoked among the Americans. The only poHti- 
cal model which the Australians knew at first hand was 
the government of Britain by its Parliament, a govern- 
ment which had ceased in 1832 to be oligarchic, and had 
since 1867 begun to be democratic. Accordingly, among 
the Australians, State feeling had a thoroughly practical 
and business character. It took in each man the form of 
a resolve to secure the agricultural and trading interests 
of his own part of the country. It was in fact the wish 
to make a good bargain for his community and himself. 
Sentiment there was and is. But the sentiment gathered 
round the Commonwealth of the future rather than the 
Colony of the past. The same kind of feeling which at- 
tached the sons of the Cavaliers to Virginia and the Puri- 
tans of Massachusetts to the old ' Bay State ' made the 
Australians desire to found a great nation which should 
be the mistress of the Southern seas. Hence the absence 
of any jealousy of the central power beyond that which 
is suggested by the fear that local industrial or commer- 
cial interests might be unfairly dealt with. 

This attitude of Australian feeling will therefore (if 
the view here presented be correct) work towards the 
development of those centralizing tendencies in the Con* 



326 THE AUSTRALIAy COMMOXWEALTH 

stitution for which its terms give ample scope. In all 
forms of polity the influences which draw the members 
of a composite political community together and those 
which thrust them asunder are partly material, partly 
sentimental^. How the influences of material interest 
will work in Australia I will not attempt to predict. 
Some of them may prove centrifugal; others, such as 
those of trade, are clearly centripetal. The Constitu- 
tion frankly recognizes that economic conditions pre- 
scribe a federal rather than a unitary government. But 
it is a significant fact that the influences of sentiment 
were arrayed on the side of the Nation rather than on 
that of the States. One can read this between the lines 
of the Constitution; and it explains why the Frame of 
Government is less consistently Federal than is that of 
the United States. 

XXI. Modern and Democratic Character of 
THE Australian Constitution. 

The Australian instrument is the true child of its era, 
the latest birth of Time. Compared w4th it, the Ameri- 
can Constitution seems old-fashioned, and parts of the 
Swiss Constitution positively archaic. Cabinet Govern- 
ment, whose fully developed form is scarcely a century 
old, is taken for its basis. Ideas and enterprises, pro- 
blems and proposals, so new that they are only just be- 
ginning to be seriously discussed, figure in it. As sla- 
very, an institution almost coeval with the human race, 
but essentially barbarous, survived to be mentioned 
(under a transparent euphemism) in the Constitution 
of the United States, so a new industrial question — ^viz. 
the struggle between white labour and free coloured 
labour — makes its appearance in this Australian docu- 
ment. Here too are the new products and new methods 
of science, telegraphs and telephones and the keeping of 
meteorological observations ; here is the extension of 

1 See Essay IV. 



THE AUSTRALIAN COMMONWEALTH 327 

the suffrage to women ; here are the new troubles which 
spring from contests between employers and workmen ; 
here the new proposals for throwing on the State the 
function of providing for its members in sickness and 
old age ; here an express recognition of the right of a 
State to control the traffic in intoxicating liquors. And 
above all these one perceives through the whole instru- 
ment that dominant factor of our age, the ever-present 
and all-pervading influence of economic forces, of in- 
dustrial production, of commerce, of finance. The in- 
creased and increasing importance of these influences 
in the life of the modern world, stimulated as they have 
been by the amazing progress of scientific discovery, 
finds a fuller expression in this Constitution than in any 
other yet framed. 

As in these points this Constitution is at least abreast 
of European and American theory, and ahead of Euro- 
pean or American practice, so also it represents the 
high-water mark of popular government. It is pene- 
trated by the spirit of democracy. The actual every- 
day working of government in the Australian Colonies 
is more democratic than in Britain, because Britain has 
retained certain oligarchical habits, political as well as 
social. It is more democratic than in the United States, 
because there both the States and the Union are fettered 
by many constitutional restrictions, and because wealth 
has there (as indeed in Britain also) been able to exert 
a control none the less potent because half-concealed. 
But the Constitution of this Federal Commonwealth is 
more democratic than are the Constitutions of the seve- 
ral Australian colonies, in some of which property quali- 
fications and nominated second chambers have survived 
till now. It prescribes no qualification for a Senator or 
Representative beyond his having attained the age of 
twenty-one and being himself qualified to become an 
elector. He need not even be a resident in the State 
where he seeks election. The Senate as well as the 
House is elective ; both are chosen directly by the peo- 



S28 THE AUSTRALIAX COMMONWEALTH 

pie, and on the basis of the suffrage which each State 
prescribes for the election of its more popular House. 
The duration of the House is only three years. The 
direct popular vote, an institution specially characteris- 
tic of advanced democracy, which has been developed 
independently in the United States and in Switzerland 
(where it has taken the double form of a Referendum to 
the people and an Initiative proceeding from the peo- 
ple), is here applied to the enactment of amendments to 
the Constitution, and, in the form of a general election 
of both Houses simultaneously, to the settlement of 
deadlocks between the Houses. There is no veto on the 
acts of the Legislature, for that vested in the Governor- 
General and in the Crown is not intended to be used ex- 
cept in the rare cases where imperial interests may be 
touched. In fact all those checks and balances in the 
English and American Constitutions by which the cen- 
sors of democracy used to set such store, have here 
dwindled down to one only, viz. the existence of two 
Chambers. These two will be elected on the same fran- 
chise and composed of similar men, but the tendency 
to dissension so natural to rival bodies may sometimes 
interpose delays and ought certainly to make the criti- 
cism of proposals more searching. If the principle of 
popular sovereignty is expressed with equal clearness 
in the Constitutions of America and Switzerland, it as- 
sumes in this Australian Constitution a more direct and 
effective form, because many of the restrictions which the 
two former constitutions (and especially that of Amer- 
ica) impose on the legislature in the supposed interests 
of the people are absent from the Australian instrument. 
In Austraha the people, through their legislature with 
its short term, are not only supreme, but can, by the 
legislature's control of the Executive, give effect to their 
wishes with incomparable promptitude. For this pur- 
pose, the expression ' people ' practically means the 
leader who for the time being commands the popular 
majority. Holding in his hand both the Executive 
29 



THE AUiSTEALIAN COMMONWEALTH 329 

power of the Cabinet and the legislative power of Parlia- 
ment, he has opportunities of effecting more than any 
one man can efifect under the constitutions either of 
America or of Switzerland. 

The solitary restraint which Australia provides is the 
co-ordinate authority of the Senate, a hostile majority 
in which may check or at least delay his legislative pro- 
jects. Yet if his party in the country be well organized 
and his programme alluring to the masses he may con- 
trol the Senate as well as the House, for it does not fol- 
low that because the smaller States have prudently 
placed their interests under the protection of the Senate, 
they will on the great issues of politics be usually found 
opposed to their larger neighbours^. 

This highly democratic character of their Constitu- 
tion has been fully appreciated by Australian statesmen. 
The efifusiveness with which they dwell upon it is pro- 
bably more sincere than even that which is displayed by 
politicians in England, America, or France, when they 
chant the praises of the multitude. Australians are as 
sanguine in their temper now as Americans were in the 
days before the clouds of Slavery and Secession had 
begun to darken their sky. 

XXII. Political Party in Australia, 

Although the Constitution says no word about politi- 
cal parties, the fact that it contemplates a party system is 
written over it in bold characters. The sages of the 
Philadelphia Convention of 1787 neither intended nor 
expected that the scheme they devised would fall into 
the hands of parties. Indeed they had a touching faith, 
<lispelled as soon as Washington retired from the scene, 
that the electors who were to be chosen to elect the 
President would select the best man in the nation irre- 

1 In the first election of members of the two Houses, which took place while 
these pages were passing through the press, every State was divided upon the issue 
of Free Trade versus Protection, though the Protectionist (or high-tariff) party 
secured more seats, in proportion, in the House than it did in the Senate. 



330 TEE AUSTRALIAN COMMOyWEALTE 

spective of his political ties. The Swiss, strange as it 
may seem to men of English or Anglo-American race, 
have succeeded in keeping their Executive, elected 
though it is by the Chambers, out of party politics alto- 
gether, nor do parties dominate the legislature and co- 
lour the public life of the nation as in America and Eng- 
land. But Government of the Enghsh ' Cabinet type ' 
is essentially party Government, that is to say, it has 
been so hitherto both in England and wherever else it 
has been tried, and no one has yet shown how it can be 
made to w^ork otherwise. 

In America the great parties are younger than the 
Constitution, which may be said to have created them. 
In England they are older than Cabinet Government 
proper, being practically contemporaneous in their rise 
with that very rudimentary form of the Cabinet which 
began to emerge in the time of King Charles II. In 
Australia every colony has had such active and skilfully- 
organized parties that .no one doubts but what the Fede- 
ral Legislature will find its first ■Ministry forthwith pro- 
vided with a competent Opposition. It is generally 
believed that the tariff wall furnish the first, and for some 
time the main, ground of party division, for the new 
Government must begin by providing itself with an ade- 
quate revenue ; the chief part of that revenue must be 
raised by indirect taxation, and the issue of Free Trade 
zrrsiis Protection has for years past been a burning one 
in the largest Colonies. 

I have observed that the Australian scheme contem- 
plates a party system to work it. But what sort of a 
party system ? Obviously one in w^hich there are two 
parties only, each cohesive, each prepared to replace its 
antagonist in the Executive. Such was the party system 
of England till the present generation. Such has been 
the party system of the United States. Exceptions in- 
deed there have been, such as the Know-Nothing party 
in 1852, the Greenback party in 1876, the Populist party 
which arose in 1889, and is not quite extinct now (Febru- 



TEE AUSTRALIAN COMMONWEALTH 331 

ary 1901). In the United States the power of the two 
great organizations is so vast, and the cost of creating 
a new party so deterrent, that a third organization sel- 
dom appears, and if it appears, presently disappears. 
But in France there have been and are several parlia- 
mentary groups, which frequently change their attitude 
towards one another, sometimes combining to support 
a Ministry, sometimes falling asunder and leaving it to 
perish, because one group alone was not sufficient to 
sustain it. Hence the lives of Cabinets have been short, 
and would have been still shorter but for the fact that 
an imminent peril to republican government itself has 
sometimes compelled the various republican groups to 
hold together. In Britain the same difficulty became 
acute from 1880 onwards, as the Irish Nationalists con- 
solidated themselves in a distinct Third Party ; and it 
may at any moment create serious embarrassment. It 
exists in Germany also, and in the Reichsrath of the 
Austrian half of the Austro-Hungarian Monarchy. 
Now in several of the Australian Colonial Parliaments 
a Labour party has recently arisen, which, keeping itself 
independent of the two older parties, can throw its 
weight on one or the other side and endanger the sta- 
bility of Cabinets. Should this phenomenon reappear 
in the Parliament of the Commonwealth, it will com- 
plicate still further a position which the co-ordinate 
powers of Senate and House make complicated enough 
already ^. 

XXIII. Political Issues likely to arise 
IN Australia. 

The mention of parties suggests another question, the 
last I shall attempt to discuss, viz. the lines on which 
the political life of Australia is likely to move under her 
new Constitution. It is a topic on which little will be 

1 Since these lines were written, the phenomenon has reappeared, for at the first 
elections, held in the spring of 1901, of the Senate and House, the Labour party 
obtained more than one-fifth of the seats in each House. 



332 THE AUSTRALIAN COMMONWEALTH 

said by any one who remembers how seldom great con- 
stitutional changes have been followed by the results 
prophesied at the time. The Reform Bill of 1832 in 
Britain, the Civil War in the United States, the union of 
Italy under the dynasty of Savoy, not to speak of the 
French Revolutions of 1789 and 1848, all brought forth 
fruits very different from those predicted by some of 
the most judicious and unbiassed contemporary ob- 
servers. Even the extension of the suffrage and redis- 
tribution of seats effected in Britain in 1884-5 were fol- 
lowed by a shifting of the balance of party strength 
exactly the opposite of that which the shrewdest party 
politicians had expected. But without attempting fore- 
casts, one may try to indicate certain conditions likely 
to affect the development of Australian national and po- 
litical life under the new form which this Constitution 
gives it. 

First let us ask what are the controversies likely to 
occupy the nation and to supply a basis for national 
parties ? 

Taking one country with another, it will be found that 
the questions on which men have grouped themselves 
into parties may be classed under five heads, viz. : — 

1. Questions of Race, such as those which have con- 
tributed to distract Ireland, which to-day trouble the 
Austrian ^Monarchy and (as respects the Poles) the Prus- 
sian Monarchy, which exist, though at present not acute, 
in Canada, and which are painfully acute in South Africa. 

2. Questions of religion, now generally less formida- 
ble than they once were, yet embittering disputes re- 
garding education in many modern countries. 

3. Questions relating to foreign policy, whether as to 
the general lines on which it should be conducted, or as 
to the attitude to be held towards particular States at 
any given moment. 

4. Questions regarding the distribution of political 
power within the nation itself. 

5. Questions of an economic or economico-social 



THE AUSTRALIAN COMMONWEALTH 333 

kind, e.g. regarding the disposal of land in public hands 
or its tenure in private hands, regarding the conditions 
of labour, regarding taxation and finance, the policy of 
Protection or Free Trade, the policy of progressive im- 
posts, the propriety of assisting particular industries or 
particular classes out of public funds, whether national 
or local. Some of these may seem to be rather social 
than economic, but it will be found upon scrutiny that 
it is their economic aspect, i.e. their tendency to take 
money from or give money to some class in the com- 
munity, that makes them bases for party combination. 
A purely social question seldom assumes great political 
significance. 

(i, 2) Applying this classification to Australia we shall 
find that the first two sets of questions are absent. All 
the people are of practically the same race. None are 
animated by any religious passion, although contro- 
versies have sometimes arisen over theological teaching 
in State schools. 

(3) Questions of foreign policy do not, strictly speak- 
ing, come within the scope of the Commonwealth Parlia- 
ment, because they belong to the mother country. 
Nevertheless, it cannot be doubted that the Parliament 
will from time to time interest itself in them, especially 
as regards the isles of the Pacific and of the Eastern 
Archipelago, and will give forcible expression to its 
views should any crisis arrive. One can well imagine 
that the question of the attitude which the Common- 
wealth should assume, or urge the mother country to 
assume, towards Germany or France, or Holland, or 
even towards China or Japan or the United States, when 
any of these Powers may be taking action in the West- 
ern Pacific, might give rise to political contention. 

(4) As respects the distribution of political power and 
the structure of the Federal Government, Australia is 
so democratic already that it cannot go much further. 
It will doubtless, however, be proposed to extend to 
women in all the States that right of voting at Common- 



334 THE AUSTRALIAN COMMONWEALTH 

wealth elections which they already enjoy in South Au- 
stralia and Western Australia, under the local law, or 
to apply more widely the institution of the direct popular 
vote ; or to amend the Constitution in some point which 
will raise an issue between the more radical and the more 
conservative sections of opinion. That questions of con- 
stitutional amendment have played so small a part in 
American politics may be attributed to the extreme dif- 
ficulty of securing the majorities required for altering 
the Constitution. In Australia the process will be far 
easier. The history of the United States during the first 
seventy years of the Constitution suggests that the ques- 
tion of the respective rights of the Federation and of 
the States may furnish a prominent and persistent issue. 
This is quite possible, for in Federations there is a ten- 
dency for many controversies of various kinds to con- 
nect themselves with, or to raise afresh, controversies 
regarding the true construction of the Federal instru- 
ment as respects the powers which it assigns to the 
Nation and to the component communities. 

(5) It is however questions of the economic order that 
are likely to occupy, more than any others, the minds 
and energies of Australian statesmen. The tariff is a 
practically inexhaustible topic, because apart from the 
general issue between a Protective and Free Trade 
policy, the particular imports to be taxed and the par- 
ticular duties to be imposed will furnish matter for de- 
bates that can hardly have finality, seeing that cir- 
cumstances change, and that the financial needs of the 
Government will increase. It need hardly be said that 
in a new country like Australia direct taxation is difficult 
to collect and highly unpopular, so that larger recourse 
will be had to customs and excise than orthodox econo- 
mists could justify in Europe. The financial relations 
between the Commonw.ealth and the States will be an- 
other fertile source of controversy. So may the regula- 
tion of the railways, which the Commonwealth seems 
likely to take over. So will the arrangements for secur- 



TEE AUSTRALIAN COMMONWEALTE 335 

ing the respective rights of different States as regards 
both irrigation and the navigation of the rivers, practi- 
cally the only rivers of the Continent, which intersect the 
three south-eastern colonies. Among the labour ques- 
tions likely to arise, one problem, much before the minds 
of Australians, may be found to cause difficulties in its 
details if not in its general principle ; viz. the exclusion 
of immigrants of coloured race, Chinese, Japanese, Ma- 
lays, and Indian coolies. The white labourers of the 
temperate colonies have been strongly opposed to the 
admission of such strangers, but the planters of the 
tropical north, who have used the labour of Pacific 
islanders on their sugar estates, take a different view of 
the case. 

Some may think that the obvious line of party division 
will be found to be that which ranges the four smaller 
and the two larger States into opposite camps. If this 
should happen, which may well be doubted, it will be 
owing to a coincidence of economic interests, and not 
to the mere fact that the strength of one set of States 
lies in the House, that of the other in the Senate. The 
two largest States, New South Wales and Victoria, have 
hitherto been conspicuously divergent in their financial 
policy. In America, though the small States fought hard 
against the large ones in the Convention of 1787, the 
distinction has never since that date possessed any per- 
manent political significance. 

If parties form themselves on any geographical lines, 
the line will more probably be one between the tropical 
and the temperate regions. These tropical regions are 
at present much less populous and wealthy than is the 
temperate south-east corner of the Continent. They will 
doubtless increase both in wealth and in population, but 
as the strong sun forbids out-door labour to white men, 
the population enjoying political rights cannot, for gene- 
rations to come, be a large one. 



336 THE AUSTRALIAN COMMONWEALTH 

XXIV, Possible Entrance of New States. 

The existing situation may be so materially affected 
by the entrance of new States that one naturally asks 
what are the prospects that new States will be admitted. 
As the whole Continent is already divided among the 
five existing States, new ones can come into being only 
by carving up the three larger of these. There has al- 
ready been talk of dividing Queensland into two or per- 
haps three States. Others might be formed out of the 
now sparsely peopled regions of the north and north- 
west, when they have become more thickly inhabited. 
How fast the process of colonization will advance in 
these regions will depend upon what engineering science 
may be found able to do for the more arid tracts in the 
way of storing rain-water and raising it from deep wells, 
while something will depend on the disposition of the 
Federal Government to spend money for that purpose. 
Nor is another element to be overlooked. Vast as is 
the mineral w^ealth already known to exist in the ex- 
plored parts of Australia, it may be equalled by that 
which exists in regions which have received no thorough 
geological examination. Should mines begin to be 
worked in the arid tracts, an additional motive would 
be given for the provision of water supplies there, for 
the existence of a population furnishing markets would 
stimulate men to develop the capacities of the soil for 
ranching and even for tillage. These possibilities show 
how many factors hitherto undetermined may go to 
moulding the political future of the country. The in- 
crease of population in regions now thinly peopled would 
either make the four smaller States, or some of them, 
the equals of the larger, or would, more probably, lead 
to the creation of new States, some of them with a cha- 
racter different from that of the two which now com- 
mand a decisive majority in the House of Representa- 
tives. As the settlement of the Mississippi Valley 
changed American politics, so a filling up of large parts 



THE AUSTRALIAN COMMONWEALTH 337 

of the interior and north of Austraha, unlikely as this 
now appears, might afTect her constitutional growth in 
ways at which we can now only guess. 

At present not only these tropical regions, but also the 
settled parts of Western Australia are separated by vast 
uninhabited spaces from the populous south-east corner 
of the continent. Hence just as in Canada an Interco- 
lonial Railway to connect Nova Scotia and New Bruns- 
wick with Quebec and Ontario was provided for in the 
Constitution of 1867, and just as the construction of the 
great transcontinental Canadian Pacific line enabled 
Manitoba and British Columbia to become effective 
members of the federation, so a line of railway from 
east to west across Australia, as well as the completion 
of the line, already partly constructed, from the south 
to the north, are among the political needs of the Com- 
monwealth, and might do much to weld its people into 
an even more united nation. 

One community remains to be mentioned whose geo- 
graphical position towards Australia recalls the saying 
of Grattan that while the Ocean forbade Ireland to be 
politically severed from Britain, the Sea forbade an in- 
corporating union. It has been hoped that New Zea- 
land would enter the I-'ederation, and she has herself 
seriously considered whether she ought to do so. With 
a healthy climate, a soil generally well watered, and an 
area not much less than that of the British Isles, New 
Zealand has evidently a great future before her. The 
population, now between 700,000 and 800,000, has tripled 
within the last thirty years ; and the level of personal 
comfort and well-being is as high as anywhere in the 
world. Her accession would give further strength to 
the Federal Commonwealth. But New Zealand, as one 
of her statesmen observed, has twelve hundred reasons 
against union with Australia, for she is separated from 
the nearest part of Australia by twelve hundred miles of 
stormy sea, a distance more than half of that which 
divides Ireland from Newfoundland. She mav therefore 



338 THE AUSTRALIAN COMMONWEALTH 

think that some sort of permanent league with Austra- 
lia, for the purposes of combined naval defence and joint 
action in external questions of common concern, would 
conform better to her outlying position than would par- 
ticipation in a Legislature which must be mainly occu- 
pied with the affairs of Australia. Of the subjects 
assigned by the Constitution to the Commonwealth Par- 
liament, there are several in which, because purely Au- 
stralian, New Zealand would have no interest, some also 
with regard to which she could legislate better for her- 
self than the Commonw^ealth could legislate for her, in- 
asmuch as her economic and social conditions are not 
the same as those of Australia. An illustration is fur- 
nished by the difference between the native races in the 
two countries. The Australian aborigines, one of the 
most backward branches of the human family, are ob- 
viously unfit for the exercise of any political functions. 
They are not permitted to vote in any colony, and the 
Constitution provides that in determining the number 
of representatives to be allotted to a State they shall 
not be reckoned among its population. But the Alaoris 
of Xew Zealand are an intelligent folk, to whom New 
Zealand has given the suffrage, and who are now on 
excellent terms with their white neighbours. It would 
no doubt be possible for the Commonwealth Parliament 
to legislate differently for them and for the ' black fel- 
lows ' of Australia ; but their dissimilar character shows 
the difference of the problems which arise in the two 
countries. New Zealand has however an interest in ob- 
taining free access to the Australian markets, and her 
final decision as to entering the Federation may be in- 
fluenced by the commercial policy which the larger coun- 
try pursues i. 

In this changeful world, no form of government ever 
remains the same during a long series of years, and no 
Federation, however strictly the rights of its members 

1 While these pages were passing through the press, a Commission appointed in 
New Zealand to consider the question has reported strongly against her entrance 
into the Australian Federation. 



TEE AUSTRALIAN COMMONWEALTH 339 

may be secured by a Rigid Constitution, can continue to 
maintain exactly the same balance of powers between 
the Nation and the States. I have already expressed the 
opinion that the tendency is in Australia likely to be 
rather towards consolidation than towards a relaxation 
of the Federal bond, because not only national senti- 
ment but economic influences also will work in that di- 
rection. Much however may depend on a factor still 
unpredictable, the relations between Australia, together 
with the British Empire generally, and the other Powers 
which are interested in the Western Pacific. Nothing 
does so much to draw together a people already homo- 
geneous as the emergence of issues which threaten, or 
result in, a struggle against foreign States. The senti- 
ment of internal unity is accentuated. Public attention 
is diverted from domestic controversies. Powers are 
willingly yielded to the Executive which would in days 
of peace be refused. The consequences may be good 
or evil — they have sometimes been in the long run evil 
— but either way they alter the character of the govern- 
ment. They may even give a new direction to its policy, 
as the United States has recently, and quite unexpect- 
edly, discovered. 

XXV. Future Relations of the Australian 
Commonwealth to Britain. 

AustraHa however is not a State standing alone in 
the world, but a member of the British Empire, so we 
cannot close an examination of her Constitution without 
asking whether the union of her Colonies will affect her 
relations to the mother country. 

When the first Convention to frame a Federal Con- 
stitution assembled in 1891, most Englishmen supposed 
that a Federated Australia would soon aspire to com- 
plete independence. Australian statesmen saw deeper, 
and predicted that the formation from the several Co- 
lonies of an Australian Nation would tend not to loosen, 



340 TEE AUSTRALIAN COMMOXWEALTE 

but rather to draw closer the ties that unite the people 
to Great Britain. So far as can be judged from the 
course of Australian opinion during the past ten years, 
this has been the result. There were at first some who 
advocated Federation as a means to independence. But 
they soon desisted, overborne by a different current. 
The same National feeling through which Federalism 
triumphed seems to have deepened the sense of unity 
with other members of the British race. And possibly 
that suspicion which colonies are apt to feel of a sort 
of patronage on the part of the mother country, and 
which sometimes disposes them to be self-assertive, may 
have vanished as they came to realize that the old coun- 
try was proud of them and wished to treat them not only 
as a daughter but as an equal. Neither do they, demo- 
crats as they are, harbour distrust of a monarchy, or 
deem their freedom in any way hampered by it. The love 
for republicanism in the abstract, though far stronger 
in Continental Europe than in England, was everywhere 
a force in the first half of the nineteenth century. It has 
faded away in the second half throughout the British 
world, because the solid substance of freedom has been 
secured, because the old mischiefs of monarchical gov- 
ernment have reappeared in republics, because men's 
minds have begim to be occupied with economic and 
social rather than with purely political questions. The 
fact that the British Crown is titular head of the Au- 
stralian Commonwealth will not render the working of 
the Constitution less truly popular, any more than has 
befallen in Canada, a somewhat less democratic country. 
So far as the internal politics of Australia are concerned, 
she will take her own course, scarcely affected by her con- 
nexion with England. But the fact that she is, and seems 
likely to remain, a part of the British Empire, sharing 
in the enterprises and conflicts and responsibilities of 
that vast body, is a fact of the highest moment for her 
future and for the future of the world. Still more mo- 
mentous might her relation to the Empire become 



THE AUSTRALIAN COMMONWEALTH 341 

should any scheme be devised for giving the self-govern- 
ing Colonies of Britain a share in the financial liability 
for common defence, together with a voice in the deter- 
mination of a common foreign policy. The difficulties 
of constructing any constitutional machinery for this 
purpose are obvious, yet perhaps not insurmountable. 
Should any such arrangement be ever reached, it will 
probably be reached through some crisis in the history 
of the Empire itself. 

Sixty years ago it was generally believed that as soon 
as each British self-governing colony had become con- 
scious of its strength, it would naturally desire, and could 
not be refused, its independence. But the last sixty 
years have brought with them many favouring condi- 
tions ; and among these, one of which no one then 
thought, the long reign of a sovereign whose personal 
character, by its purity, simplicity and kindliness, won 
such reverence and affection, not only for herself, but 
also for the ancient institutions at the head of which 
she stood, that the prolongation of her life may be 
reckoned among the causes which have kept these far- 
off lands a part of the British realm and have given its 
actual form to the Commonwealth of Australia. 



